Posted: Monday, 6 October 2014 @ 15:37
The law on adverse possession is complicated.
What exactly is “adverse possession”? Basically it is an occupation of land inconsistent with the right of the “true” owner. By “true owner” I mean someone who holds the “paper” title of either registered or unregistered land. Registered land means land registered under the Land Registration Acts.
To be adverse the occupation need not be physical in terms of a permanent presence on the land. It can involve simply the use of the land in a way which suggests that the trespasser is using the land as his own. For example fencing the land, or securing it in some way, building on it, or using it for grazing.
However, there must be an intention to possess the land. It cannot amount to adverse possession if the actual use has been agreed to by the owner. It must be without the owner’s consent. Otherwise it would involve both an acknowledgement by the trespasser that the owner has rights to grant permission, as well as a demonstration by the owner that he is exercising those rights by granting permission.
So how can title to land be obtained by adverse possession? This depends on whether the land has registered title and when the title was registered.
The law for unregistered land is set out in section 15 of the Limitation Act 1980. If someone is in possession of land for 12 years (either on their own or with predecessors having the same intentions and possession) from the date on which a right of action accrued against him, then both the right of the “true owner” to take action for trespass and the title of the “true owner” are extinguished. The person claiming adverse possession could apply to the court for a declaration that he has acquired title, and could challenge any action for possession by “true owner” after the 12 year period has elapsed.
Time will stop running by a signed written acknowledgement of the owner’s title. For example an written offer to purchase would be an acknowledgement.
But it is important to assess the position on 13 October 2003. This is the date the Land Registration Act 2002 came into force. If the squatter had already been in adverse possession for the full 12 years by 13 October 2003, then the rules for unregistered land will apply even if the land in question is subsequently registered.
If the land is registered land, and 12 years possession had not been enjoyed by 13 October 2003, then it is much more difficult for a squatter to obtain title. This is because the registered owner will have an opportunity of defeating the claim.
The new regime under the Land Registration At 2002 and Land Registration Rules 2003 provides a mechanism which the squatter must follow to obtain title. He must apply to the Land Registry, not the court. He must show 10 years adverse possession ending on the date of the application. Also, if he has been evicted within the previous 6 months, and can show that immediately prior to the eviction he had been in adverse possession for 10 years, he can still apply.
With the Land Registration Act application the registered proprietor can object. In that case the applicant is only entitled to be registered as proprietor if he can establish:
(a) That it would be unreasonable because of an equity of estoppel (essentially the conduct of the registered proprietor) for the registered proprietor to dispossess the applicant and the circumstances are such that the applicant ought to be registered, OR
(b) That there is some other reason why he should be registered,(For example the squatter bought the land and paid for it but the legal title was never completed),OR
(c) “The squatter has been in adverse possession of land adjacent to their own under the mistaken reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.”( For example the dividing walls or fences on an estate were erected in the wrong place.)
If you think you may have a claim to adverse possession it is always a good idea to obtain early legal advice.
Business and Litigation Solicitor
Tel: 0845 003 5639
Blog by Nigel Musgrove
Nigel has been providing dispute resolution advice as a solicitor for over 35 years. As well as advising SMEs and business owners on disputes he also offers a specialist licensing law service. View profile
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