Adverse Possession (and How to Claim it!)
Adverse possession allows an individual (‘squatter’) to acquire valid freehold title to a specific piece of land when they have been in continuous occupation and had exclusive possession of the land over a specified number of years. Adverse possession is often referred to as ‘squatters’ rights’.
In the context of adverse possession, the term ‘squatter’ holds specific meaning; they must have actual, physical possession of the land that is exclusive to them and without permission of the landowner.
How to Claim Adverse Possession of Registered Land
Under Schedule 6 of the Land Registration Act 2002 a person can apply to be registered as the legal owner of a piece of registered land they do not own by showing all of the following:
- Factual possession of the land for a period not less than 10 years
- Intention to possess the land throughout that period
- Possession of the land without the owner’s consent
To prove factual possession, the applicant must show a sufficient degree of physical control has been exercised over the land throughout the 10-year period. It is not sufficient to merely show that the land has been occupied. There needs to be exclusive occupation; the landowner and squatter cannot both be in possession of the land at the same time.
The question of what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Broadly speaking, what must be shown as constituting factual possession is that the squatter has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.
An application would need to be supported by compelling evidence that the land had been used to the exclusion of others. Where, for example, the land was previously open ground, where it has been fenced in, as part of a garden or driveway perhaps, is strong evidence of factual possession, but it is not necessarily conclusive.
Intention to possess
Here the applicant need not show an intention to own the land, or even an intention to acquire ownership, but simply an intention to use and control the land as their own. This means the intention to exclude the world at large, including the registered owner.
Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the acts making up that factual possession. However, the intention must not be equivocal, for example, use of land for access purposes is unlikely, by itself, to be sufficient to establish an intention to possess the land.
Possession without the owner’s consent
For possession to be ‘adverse’, it must be enjoyed without the landowner’s consent. If, therefore, a person occupies or uses land by licence of the owner, they cannot be treated as having been in ‘adverse possession’.
Making an application for adverse possession
Applications for adverse possession are made to the Land Registry using the ADV1 form and supporting documents and evidence, such as statement of truth (ST1 form) made within one month of the application being submitted.
A squatter may make an application up to six months after they have been evicted, provided they are eligible and that the eviction was not the result of a court order for possession.
The registered owner will be notified by the Land Registry of the claim, and can choose to:
- consent to the application
- object to the application
- give counter notice requiring the registrar to deal with the application under Schedule 6, paragraph 5 of the Land Registration Act 2002
- both object to the application and give counter notice.
They have 65 business days to reply to the notice.
If a counter notice or objection is not received by HM Land Registry, they will register the squatter as proprietor once the time limit has expired.
Where an application is challenged
The landowner may object to the application by way of a signed written statement setting out the grounds for the objection.
They may want to argue that the squatter is not entitled to apply because, for example, there has not been factual possession, with the requisite intention and without consent, or that the possession has not been for the necessary period of time.
In the event that the matter cannot be resolved by way of negotiation between the parties, the registrar will refer the matter to the tribunal for resolution. The tribunal will then set a date for hearing or direct one of the parties to start court proceedings.
The landowner can also serve a counter notice requiring the registrar to deal with the application under Schedule 6, paragraph 5 of the 2002 Act. However, the squatter will still be entitled to be registered if any one of the following three conditions is met:
- It would be unconscionable for the proprietor to deny the squatter the rights that they believed they had, for example, where the squatter has built on your land in the mistaken belief that they were the owner of it and you knowingly acquiesced in their mistake.
- The squatter is, for some other reason, entitled to be registered as the proprietor, for example, where they contracted to buy the land and paid the purchase price, but the legal estate was never transferred to them.
- The squatter has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it, and the exact line of the boundary with this adjacent land has not been determined, for example, where dividing walls or fences have been erected in the wrong place.
Landowners may opt to object and serve a counter notice. In this way, if the objection is unsuccessful, they can take advantage of Schedule 6, paragraph 5 so that the squatter’s application will be rejected unless any of the three conditions in that paragraph is met.
Further application by the squatter for registration
In the event that the application is rejected but the squatter remains in adverse possession for a further 2 years, they will then be able, subject to certain exceptions, to reapply to be registered as proprietor. The squatter will be entitled to be registered as proprietor except where:
- the squatter is a defendant in proceedings for possession
- there has been judgment for possession given against the squatter in the last 2 years
- the squatter has been evicted pursuant to a judgment for possession.
This means the landowner will have at least 2 years in which to take steps either to evict the squatter, or at least to start proceedings to do so, or to legitimise their occupation by, for example, negotiating a licence under which the squatter can stay as licensee.
Adverse possession over unregistered land
For unregistered land, adverse possession is governed by the Limitation Act 1980. The squatter must have enjoyed uninterrupted occupation of the land for a period of at least 12 years.
How to make a claim the freehold for unregistered land
Where the squatter meets the 12-year requirements, they can submit their claim for adverse possession to the Land Registry in respect of the land in question provided they can show factual possession.
The Land Registry will then consider the application.
It will be looking at the degree of the squatter’s physical possession of the land to the exclusion of others. This will include an inspection of the land in question and the existence and use of physical boundaries (fencing, walls etc.) around the land.
It will also refer to historical records and Ordinance maps, and attempt to contact the last known owner of the land if this information is known.
Where the Land Registry is satisfied, it will grant possessory title. After a further 12 years with possessory title, the squatter may able to secure absolute title.
Taking legal advice over adverse possession
Making an application for adverse possession is rarely straightforward. The outcome of an application to register land based on adverse possession can also be difficult to predict. Much depends on the nature of the land in question and how that type land is usually used or enjoyed.
Legal advice should be sought from an expert to guide you through the process for claiming adverse possession.