Land: use it or lose it. That’s the basic premise behind the often controversial legal principle of adverse possession.
Adverse possession is colloquially known as “squatters rights” and is based on an ancient philosophy requiring owners of land to actually make productive use of it. Historically, the value of land was derived from what it could produce rather than the actual land itself. Land is a finite resource after all. Should an owner have not put his or her land to productive use, then this was held as some form of wrongdoing.
That principle often appears to fly in the face of our modern deeply held views about property ownership. But land which is not maintained, and indeed the buildings upon it, can become a nuisance if neglected. There can be a financial burden to the national and local government and neighbouring property owners from neglected land, and this is particularly true of land which has been left for long periods of time. So, the principle holds that an absentee owner has infringed on the rights of others.
Adverse possession gives an opportunity for someone else to put the land to good use and therefore claim legal title to it after a defined period of time. The original landowner retains the ability to eject any trespasser at any point until the time requirement has elapsed and can contest the application providing the Land Registry can identify the owner.
A doctrine defined by UK law, adverse possession applies when a person trespassing on a property - which is owned by someone else - can apply to acquire title to it. An application can be made if certain common law and statutory requirements are met and so long as the “adverse possessor” has been in possession of the land for a sufficient period of time (usually 10 or 12 years).
Although the notion of adverse possession may at first glance appear unjust, it is a necessary legal process to ensure there is certainty about the title and use of land. It is not considered onerous for owners of land - who are not in themselves in occupation of it - to check on it and ensure there has been no unauthorised person in occupation within a 10 or 12 year period.
Different rules apply for the required periods of adverse possession depending on whether the land is registered or unregistered.
Under the LRA there are two separate regimes which deal with claims for adverse possession, each with slightly different rules.
The first relates to claims made based on possession prior to the 13th October 2003 and/or those claims which relate to unregistered land. The second applies to registered land and claims based on possession after the above date.
The two regimes have some common tests which are applied. You must be able to demonstrate either a factual possession of the land based on how you have used it or an intent to possess the land. You must be able to either establish a single and exclusive possession of the land or demonstrate you had the intention to possess the land. This means you must have treated or intended to treat the land as your own when no one else, including the present owner, was doing so.
Applications for adverse possession are made to the Land Registry. All applications must be accompanied by a statutory declaration which:
- Is made not more than a month before the application;
- Provides evidence of adverse possession.
The Land Registry will notify the registered proprietor of the land, or in the case of unregistered land, serve notice on any person who from information available may have an interest in the land.
If the land is registered with the Land Registry, then notice will be served on the registered owner. The owner has the opportunity to either object or serve a counter-notice.
If the land is not registered then it is likely the Land Registry will not know the identity of the owner and not be able to serve notice. In such cases, applications are often successful simply because the owner may never be aware of it. If the land is unregistered then proof of ownership will likely only exist in the original deeds. If deeds have been lost or destroyed then proving who owns the land or property can be particularly difficult, if impossible in some cases.
Two years must pass between a rejected application and a fresh one.
The Land Registry Act 2002 (LRA) introduced the principle that when registered land is involved - i.e. that which has been added to the Land Registry - a person can seek to acquire the title of possession after 10 years of exclusive occupation.
Unregistered property will always have an owner, but it can be much harder to track them down (as they won’t feature on the Land Registry) so the period of possession required is extended to 12 years in these cases.
The new regime under the LRA requires three further conditions to be demonstrable as applied to registered land:
- that you or any predecessors have for 10 years been in actual possession of the land;
- that you have been in factual possession of the land. Often this will be shown by fencing off of the land or by securing it to exclude others; and
- that you have the intent to possess the land.
Registration of land became compulsory on a piecemeal basis up until 1990 from when land became compulsory for registration upon the event of a sale. The Land Registry suggests that currently around 80 per cent of all land is registered and that it aims to achieve 100 per cent by 2030.
If you have an issue with adverse possession then we would advise you contact our specialist property litigation team who will be able to discuss your available options with you.