Adverse Possession

What is adverse possession?

Adverse possession is a legal concept which allows an individual non-owner to claim legal ownership over someone else’s land by occupying another person’s land without permission, often referred to as ‘squatters rights’. The principle of adverse possession is governed by the Limitation Act 1980 and the Land Registration Act 2002.

How to claim adverse possession

There are some criteria that a squatter must meet in order to claim adverse possession.  These are: –

Factual possession

There needs to be a sufficient degree of exclusive physical control over the land.  This will be specific to the land in question and the nature of it.  In essence, the squatter should be dealing with the land as one might expect an owner occupier to do so, for example, maintaining the land or erecting a fence on the land to the exclusion of others.

In order to prove factual possession, a squatter needs to prove they have had possession for a specified length of time (the “requisite period”).

If the land is registered, the requisite period is 10 years. If the land is unregistered, then the requisite period is 12 years.

The period of possession must be continuous and uninterrupted.

Intention to possess

A squatter must be able to prove that they intended to occupy and use the land as their own and, importantly, to the exclusion of all others as far as practical and permitted in law.

Possession of the land must be without the owner’s consent.  Possession cannot be adverse if the owner has consented to the occupation.

What is the process?

If a squatter has satisfied the criteria, then an application can be made to HM Land Registry to have their name registered on the title.

It is important to provide HM Land Registry with as much information as possible, in order to assist them in establishing ownership of the land.  Examples of evidence that HM Land Registry would expect to see are:

• A Statutory Declaration or witness statement verified by a statement of truth explaining how the land has been used;
• Photographs of the land and how the land has been used;
• Plans so HM Land Registry can see the land in question; and
• Invoices or receipts from contractors who have carried out maintenance or other works to the land.

Once an application has been made to HM Land Registry in respect of registered land, they will serve notice on the registered owner of the land.  The registered owner would then have an opportunity to object to the application.

If an objection is not received and the application is not opposed, the squatter will then be registered as the legal owner of the land in place of the previous owner.

If a genuine objection is received HM Land Registry will likely reject the adverse possession claim.  However, there are specific circumstances in which the claim may still be successful.

If an application for adverse possession is rejected as a result of an objection but the squatter remains in adverse possession for a further two years, they will be able to reapply for possession.  This time the application would be successful, regardless of whether an objection is received or not.

If an adverse possession claim is made against unregistered land, 12 years of adverse possession extinguishes the paper owner’s legal title.  At that point, the owner will lose their right to recover possession of the land and the person in possession would acquire a possessory title.

Contact us

If you believe you have a potential claim for adverse possession of either registered or unregistered land, or you are concerned by a third party seeking to register an interest in your land, contact Katie Tizzard, Chartered Legal Executive in Rix & Kay’s Dispute Resolution team. e. katietizzard@rixandkay.co.uk or t. 01273 766929.