Adverse possession

What is adverse possession?

Process in which an individual can claim ownership of land/property that they have used without the permission of the owner for typically 10-12 years.

What is the difference between adverse possession and squatter’s rights?

Often used interchangeably but there are key differences between the two. Adverse possession involves the long controlled use of another person’s land, leading to claims of legal ownership rights. Squatting, the unauthorised occupation of another person’s property.

Requirements for adverse possession

An application for adverse possession of registered land is made under paragraph 1 of Schedule 6 to the Land Registration Act 2002 (“LRA 2002”). The applicant must show that:

1. the applicant and any predecessors through whom they claim have been in adverse possession for at least 10 years ending on the date of the application (or 60 years for Crown foreshore), or
2. that the applicant has been evicted by the registered proprietor, or a person claiming under the registered proprietor, not more than six months before the date of the application, that this eviction was not pursuant to a judgment for possession, and that on the day before the eviction they and any predecessors through whom they claim had been in adverse possession of the land for a period of 10 years ending on that date.

It requires factual possession of the land, with the intention to possess and without the owner’s consent.  This means that applicant has been dealing with the land as an occupying owner might have been expected to deal with it, and that no one else has done so.  In many cases, factual possession is demonstrated by the applicant having fenced off or having otherwise controlled access to the land.  However, that is not strictly necessary.  For instance, in Thorpe v Frank (2019) the applicant had paved land in front of her house, which was held to establish the necessary intention to possess, even though third parties (such as postmen delivering mail to her neighbours) could still cross the land.

An application is made under form ADV1, accompanied by a statutory declaration or statement of truth, which should (as per Land Registration Rules 2003, rule 188(1) “LRR 2003”):

• be made by the squatter not more than one month before the date of the application
• provide evidence (together with any supporting statements of truth or statutory declarations) of adverse possession for not less than 10 years (or 60 years for Crown foreshore)
• (if the application relates to part only of the land in a registered title) exhibit a plan enabling the extent of the land to be identified on the Ordnance Survey map, unless the part is referred to by reference to the title plan and this enables it to be identified
• (if the squatter is applying under paragraph 1(2) of Schedule 6, LRA 2002 (where they have been evicted during the previous six months, but this eviction was not pursuant to a judgment for possession)), contain the facts relied on with any appropriate exhibits
• contain confirmation that paragraph 1(3) of Schedule 6, LRA 2002 does not apply (no current possession proceedings or judgment for possession given against the squatter in the last two years)
• contain confirmation by the squatter that to the best of their knowledge none of the restrictions on applications contained in paragraph 8 of Schedule 6, LRA 2002 applies (the proprietor is not an enemy or held in enemy territory or suffering from mental disability or physical impairment)
• contain confirmation by the squatter that to the best of their knowledge the estate is not, and has not been during the period of adverse possession, subject to a trust (other than one where the interest of each of the beneficiaries is an interest in possession.)
• and in any event, shows that the squatter’s claim to the land falls within one of the three conditions specified within Para 5 of Schedule 6 to the 2002 Act

When the respondent to the application receives it, they can either,

1. accept the application
2. object to the application
3. object and issue a counter-notice

The first option is straightforward and necessitates no further discussion.

The second option requires the respondent to set out the grounds for the objection, which will ordinarily be that the fundamental basis for an application has not been met, namely that there has not been adverse possession (ie factual possession of the land, with the intention to possess and without the owner’s consent), and/or that this has not been for a period of 10 years. If the documentary owner cannot undermine the adverse possessors claim the adverse possessor will be registered.

Where the documentary owner objects and issues a counter notice (form NAP) then, unless the adverse possessor’s claim shows and makes specific reference to one of the three conditions specified in Para. 5 of Schedule 6 of the 2002 Act applying, his application will be automatically rejected. If the adverse possessor believes that any of these conditions apply, he will need to make specific reference to them in his statutory declaration/statement of truth when making the application. (LRR 2003, rule 188(2)).

If an objection is made, the Land Registry will send a surveyor to the site who will seek to establish the extent to which there are indications of the applicant being in factual possession.  Depending on the surveyor’s report, the Land Registry may either reject the application, ask the applicant for additional information/evidence in support of the application, or allow the application to proceed either in whole or in part (i.e. if the surveyor reports that part but not all of the land comprised in the application appears to be in the possession of the applicant).

Para 5 of Schedule 6 states:

1. It would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the circumstances are such that the squatter ought to be registered as the proprietor.
2. The squatter is for some other reason entitled to be registered as the proprietor.
3. 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, the exact line of the boundary with this adjacent land has not been determined under section 60, LRA 2002 and the estate to which the application relates was registered more than a year prior to the date of the application.

One circumstance in which the second condition would apply is where the land has recently been registered and the applicant occupied the land for at least 12 years before the date of registration.

If the adverse possessor fails to make such reference and his application is rejected he will then have two years in which to expel the adverse possessor and recover the property. It is not currently known, the extent to which the court will consider itself bound to uphold the documentary title owner in a claim for possession following rejection of the adverse possessor’s claim.

If he fails to do so he appears to have lost his chance and has to wait for two years before having another opportunity.

The importance of mentioning this is that if the applicant has failed to tie his application into any of the grounds mentioned in Para 5 of Schedule 6 then, if the respondent objects and issues a counter-notice, the Land Registry MUST reject the application for adverse possession. The applicant is then unable to make another application for adverse possession over that land for another two years.

Thus, someone who may have a case under any of these three factors, but who fails to mention this will have their application rejected.

If the application is unsuccessful because of the failure to link the application to any of the specific grounds set out in para.5 of Schedule 6 to the 2002 Act, the applicant cannot make another application for a period of two years. If however, the two years expires and the applicant is still in possession, any new application made will be successful unless the documentary owner has made a claim against the squatter.

Accordingly, respondents are advised to take steps in the two year period to evict the applicant from the land under dispute, or risk losing that land at the end of the term.

When responding to an adverse possession claim, it is important to be vigilant and to note that where an applicant has made no mention of the three factors under paragraph 5 of Schedule 6, the issuing of a counter-notice will almost certainly result in the application being rejected.

Finally, it is possible for an application to succeed on an alternative basis, namely that the applicant has simply been in possession for at least 12 years before the current Land Registration Act came into force in October 2003, or in other words that they have been in possession since at least October 1991.  Such applications are becoming less common but they are still encountered in practice.

FAQs

Does it make a difference if the land is registered or unregistered?

If the land is unregistered, then all that the applicant needs to show is that he has occupied the land for at least 12 years.  This is because the true owner of the land must bring their action against a person in possession to recover possession of it within 12 years (section 15 of the Limitation Act 1980 (“LA 1980”)) and the title of that owner will in general be extinguished at the expiry of that period (section 17 LA 1980). Time begins to run when the owner is out of possession and adverse possession starts (Schedule 1 LA 1980). As observed in JA Pye (Oxford) Ltd v Graham 2003, “the right of action to recover land is barred whenever 12 years have elapsed from the time when any right of action accrued: it does not have to be a period immediately before action brought”.

The application for adverse possession is made using Land Registry form FR1, accompanied by a statutory declaration or statement of truth.  If the applicant is successful then he will obtain a possessory registered title, which may be upgraded to an absolute registered title after a further 12 years.  Hence, it is much easier for the applicant to obtain adverse possession of unregistered land, and it is much more difficult for the true owner of the land to oppose the application.

How can landowners protect themselves?

1. Register any unregistered land
2. Monitor land for signs of unauthorised use/occupation
3. Mark out boundaries of land clearly with fencing or walls…
4. Erect signage
5. Install security systems
6. Take legal actions promptly 

How successful are adverse possession claims?

In relation to registered land, such applications rarely succeed unless there are special circumstances. In relation to unregistered land however, such applications are far more likely to be successful.