Adverse Possession – GET OFF MY LAND!

The question is, do you have to?

‘Adverse Possession’ is the legal term for the method of taking ownership of land, which is not legally yours, as a result of long-term, exclusive occupation of it – commonly also referred to as ‘Squatter’s rights’.

The Basics

For most instances of Adverse Possession there are three main elements that must be satisfied in order to have a possible claim. The occupier must have:

• Factual possession of the land in question;

• An intention to possess the land; and

• Possession without the legal owner’s permission.

The ‘squatter’, as well as meeting the above criteria, must have been in Adverse Possession of the land for a period of 12 years (where the land is currently unregistered) or 10 years (where the land is registered). The exact time requirement will vary depending on when the land was registered, and when the period of adverse possession commenced and finished.

For the purposes of this article, we will assume the land is registered and that the squatter has been in adverse possession for 10 years.

Factual Possession

To satisfy this first requirement, the squatter must be able to show that they have ‘an appropriate degree of physical control’ (Powell v McFarlane, (1977) 38 P & CR 452, Slade J). This will always take into account the nature of the land and its usual use i.e., it may be grazing land, part of a private garden etc. Essentially, the squatter will be expected to have been treating the land as their own in a way that you would expect an owner to do so.

Intention to Possess

Whilst the factual possession above may show the requisite intention to possess, this may not always be the case and will be proven on a case by case basis. The above case of Powell v McFarlane once again stated that the intention is “to exclude the world at large”. Whether or not this can be satisfied will depend on the actions of the squatter.

Possession Without Permission

The registered proprietor must not have consented to the occupation of the land by the squatter. If the adverse possession took place following a lease or licence for example, that lease or licence must have been fully terminated previously to allow the squatter even the possibility of being in occupation without permission.

The Process

Where we are satisfied that the relevant requirements are met (or potentially met) we will then be in a position to make an application for the squatter to be registered in place of the registered proprietor of the land. This involves an application form, a statutory declaration made by you in support, as well as a compilation of evidence from you – this could include photographs, copy bills or other paper evidence and statutory declarations from neighbours/contacts.

The registered proprietor is then notified of the application by way of a 65 working day notice, giving them the opportunity to dispute the application and serve a counter notice. There is then a process followed by the Land Registry to decide whether to register the squatter as the registered proprietor of the land.

Often, the squatter, if successful, will be granted ‘Possessory Title’ to the property which is noted on the title and indicates the method by which the squatter obtained the ownership (i.e., by possession, not title). When selling the property, you will likely be asked to provide a Possessory Title Indemnity Policy to protect the buyer should a third party (likely the original true owner) exercise a right to the property. The policy would normally cover such things as the cost of defending legal proceedings and damages/compensation/costs awarded against the party by a court or tribunal.

Once the possessory title has been registered for 12 years, the owner of the property may, subject to criteria, apply to upgrade the title to ‘absolute’ title (the best class of title).

How can we help?

We can assist you in the application for, or objection to, adverse possession from start to finish. Whilst we can never guarantee the possibility of success, we will work closely with you to ensure that you have the best possible chance of achieving the desired outcome.

If you would like to enquire as to how we can help you, please call us on 0330 056 5820 or email us at hello@emmtoria.co.uk