Adverse possession provides a way for individuals to acquire the legal title to land through long-term occupation, even if they are not the original owners. Adverse possession laws in the UK are complex and can have significant implications for property rights. This concept can be worrisome for landowners, particularly if you have large parcels of land that you may not regularly oversee or maintain. Fortunately, there are steps you can take to protect your ownership rights.
In this article, our commercial property solicitors walk you through the concept, requirements and consequences of adverse possession claims, what this means for registered and unregistered land, and what you can do to protect your land against such claims.
Contents:
- What is adverse possession?
- What are the differences between adverse possession and squatter's rights?
- What are the potential consequences of ignoring adverse possession claims?
- Requirements for adverse possession
- What is the burden of proof for adverse possession?
- Does it make a difference if the land is registered or unregistered?
- What steps should land owners take to protect themselves against adverse possession claims?
- How to stop someone claiming adverse possession
- What is the process for claiming adverse possession?
- How long does adverse possession typically take?
- How successful are adverse possession claims?
- Summary
What is adverse possession?
Adverse possession refers to the process in which an individual can claim ownership of land or property that they have used and controlled without the permission of the registered owner for a certain period of time (typically 10 to 12 years depending on whether the land is registered or unregistered). This concept is based on the idea that land should not remain unused or neglected, and that individuals who actively possess, maintain and or improve land should be given the opportunity to acquire legal rights to it over time. It almost acts as a deterrent to uninterested landowners and an incentive to occupiers to improve and maintain neglected land.
What are the differences between adverse possession and squatter's rights?
While adverse possession and squatter's rights are often used interchangeably, there are some key differences between the two concepts. Adverse possession involves the long, uninterrupted and controlled use of another person’s land, enabling the non-owning party to claim legal ownership rights. Squatting, on the other hand, simply involves the unauthorised occupation of another person’s property. Squatting in residential buildings having entered and remained as a trespasser has been a criminal offence since 2012. As such, squatting is categorically illegal, and the law provides accelerated rights with the assistance of the police for landowners to evict squatters from their property. It is important to note that adverse possession can still be founded by a person who occupied land based on acts of criminal trespass.
What are the potential consequences of ignoring adverse possession claims?
- Loss of ownership: If the landowner ignores adverse possession claims and the adverse possessor meets all the legal requirements, the adverse possessor could become the legal owner of the land. This means that the landowner would lose ownership and control of the property.
- Legal costs: Ignoring adverse possession claims can lead to costly legal disputes and litigation. The landowner may have to incur legal fees to defend their ownership rights in court, and if the adverse possessor is successful, the landowner could also be responsible for the adverse possessor's legal costs.
- Diminished property value: Adverse possession claims and ownership disputes can diminish a property’s value and marketability. Potential buyers or investors may be reluctant to purchase a property with a clouded title.
Requirements for adverse possession
In order to successfully claim adverse possession in the UK, individuals must meet stringent requirements, namely:
- The possession of the land must be ‘adverse’ ie without the owner’s consent
- The claimant must have factual possession of the whole of the land they are adversely claiming. This is usually demonstrated by the claimant exercising a sufficient degree of exclusive physical custody and control over the land, dealing with it as an owner would (although it need not be apparent to others inspecting the land that it has been adversely possessed)
- The individual must show an intention to possess the land in his own name, on his own behalf and to the exclusion of all others, including the title owner. This can be demonstrated for example by fencing off the land, and/or placing a lock on the only entrance/exit to it
- The possession must be continuous/uninterrupted for a specified period of time. This means that if the owner acknowledges the claimant’s possession of the land or takes action to remove him then the clock may be reset. The requisite periods are:
- 10 years if the land is registered with the Land Registry and the period of occupation ended after 13 October 2003
- 12 years if the land is registered and the period of occupations ended before 13 October 2003; or the land is unregistered.
What is the burden of proof for adverse possession?
The burden of proof lies with the individual seeking to claim ownership of the land. They must provide evidence of their occupation and possession of the land, demonstrating how they meet each of the elements required to establish adverse possession.
Does it make a difference if the land is registered or unregistered?
It is more difficult to claim adverse possession of land registered at the Land Registry – a central record which holds details of the property/land and its owner. All registered properties are given a unique identifying title number, details of which are public information. Properties that have not been registered at the Land Registry (unregistered properties) are more vulnerable to adverse possession as ownership of the land can only be proven by the original paper title deeds, which may not always be to hand.
The requisite period of occupation for adverse possession varies depending on whether the land is registered or unregistered. In the case of registered land where the possession began before 12 October 1991, it will be treated under the same regime as unregistered land.
What steps should land owners take to protect themselves against adverse possession claims?
- Register the title of any unregistered land with the Land Registry so that your name, contact details and ownership is held in a central public record
- Regularly monitor your land for any signs of unauthorised use or occupation and keep clear records of any inspections
- Commission a boundary survey/plan to understand where your property finishes and neighbouring land begins, and if neighbours are amenable then consider entering into a boundary agreement which can be lodged and recorded at the Land Registry
- Clearly mark out the full extent of your land and boundaries physically such as by erecting fences or walls or even planting fast-growth hedgerows. This will help prevent neighbouring parties encroaching onto your property and make it clear where boundaries lie
- Erect signage in clear and visible locations stating no trespassers to act as a deterrent
- Install any additional security measures to alert you of trespass such as a camera or alarm system
- Promptly take legal action against trespassers or squatters to remove them from your property
How to stop someone claiming adverse possession
If you suspect that someone is occupying your land without permission, you can help undermine a claim by demonstrating the elements of adverse possession have not been met. This means gathering evidence showing that the requisite period of occupation is not long enough (10-12 years), the occupier did not have the necessary control of the land or intention to occupy, or that you had expressly consented to or permitted the occupation, by:
- Consulting with neighbouring and previous owners to ascertain the date the incursion began
- Demonstrating a lack of physical control of the land such as absence of padlocks or fencing, or evidence of shared use ie the possessor is not exclusively occupying it
- Serving a notice on the occupier asking them to vacate the premises
- Interrupting their continuous use by obtaining an injunction to remove and keep the adverse possessor off your land
- Switching the occupation to an arrangement that recognises and preserves your ownership of the land, for eg by offering and entering into a licence to occupy with the adverse possessor
- Demonstrating that the adverse possessor is only possessing part of the land and not whole of the land
- Serving a counter notice within 65 business days of receipt of any application or filing an objection should a claim in respect of registered land be received (link below)
What is the process for claiming adverse possession?
Regardless of whether the land is registered or unregistered, the Land Registry will play a role in determining the validity of the claim.
Registered land:
Applicants must make a formal application on form ADV1, together with a plan identifying the land and an accompanying statutory declaration that evidences how the criteria/requirements for adverse possession have been met. On receipt, the Land Registry may inspect the land to verify the assertions in the Statement of Truth and ensure the plan supplied is adequate. The Land Registry will give the registered proprietor notice of the adverse possession claim, allowing them time to either consent to the application, serve a counter notice or object it.
Serving a counter notice is a very useful tool for landowners, as it means that the possessor’s application will automatically be rejected, and they will be barred from bringing another claim for 2 years, unless the possessor can demonstrate that:
- It would be unfair and unjust to deny the possessor’s claim to the land because, for example they had been promised title to the land and had acted to their detriment in reliance on the promise (a concept known as promissory estoppel)
- There has been a reasonable misunderstanding as to boundary positioning, such that the claimant has been occupying and using that area genuinely believing it to be their own. A good example of this is where the claimant purchased the property with fences that had been erected in the wrong locations encompassing land in neighbouring title
- Another good reason why the claimant may be entitled to the land, for eg the possessor can demonstrate they inherited the land or where the landowner exchanged contracts to sell the land to the claimant but did not transfer the legal title to them
If the landowner objects to the application for adverse possession or the claimant can demonstrate any of the above exceptions, then provided there are reasonable grounds in doing so, the Land Registry usually asks the parties to negotiate directly, failing which the matter will be referred for determination by the Land Adjudicator (who has similar powers to a court).
Unregistered land:
For unregistered Land, a claim for adverse possession triggers first registration. The claimant must lodge form FR1 together with a Statement of Truth evidencing how they meet the criteria of factual possession and intent for a continuous period of 12 years. The Land Registry will give notice of the application for first registration to any parties that may have an interest in the land, for example anyone with the benefit of a caution against first registration or a charge-holder. If no objections are received, the land will be registered. If any objections are received, and the Land Registry decides there a grounds in the objections, then the parties will first be offered time to negotiate, failing which the matter will be referred to the Land Adjudicator.
How long does adverse possession typically take?
This very much depends on whether the true owner of the land objects to or serves counter notice in response to the claim for adverse possession, as well as the Land Registry’s general backlog and promptness in dealing with matters. Contested or disputed claims have been known to take several years to complete.
How successful are adverse possession claims?
The success rate of adverse possession claims can vary depending on the specific circumstances of each case. Factors such as whether the land is registered, the quality of evidence, and the length of occupation can impact the outcome of such claims.
Adverse possession claims involving unregistered land are much more likely to succeed simply because identifying persons to notify of the claim for first registration and/or proving ownership is much more difficult. For that reason, applications involving unregistered land often succeed without the true owner’s knowledge.
If a claim for adverse possession is successful, the claimant is given what is known as ‘possessory title’ to the land.
Summary
Adverse possession is not a concept to be taken lightly, with severe consequences for landowners. Understanding the requirements and process for adverse possession and taking active steps can help landowners protect their property rights and address any claims effectively.
