Andrew Noble LLB (Hons) [Manchester] FRICS, FCIArb

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Please read this website's Legal Notice




Adverse Possession

Care must be taken when dealing with adverse possession claims as there are now three separate regimes:

(a) where the land is unregistered and an application is made for first registration by a person in adverse possession;
(b) where the land is registered and the person in adverse possession had not acquired title prior to 13 October 2002;
(c) where the land is registered and the person in adverse possession had acquired title prior to 13 October 2002.

Where the land is registered and the person in adverse possession had not acquired title prior to 13 October 2002, an entirely new system of adverse possession is introduced by the Land Registration Act 2002. It is thought that the new scheme of adverse possession in respect of registered land complies with the human rights legislation. The fundamental purpose behind the 2002 Act is that the register should be a complete and accurate reflection of the state of the title of the land at any given time, so that it is possible to investigate title to land on line, with the absolute minimum of additional enquiries and investigations.

Where the land is unregistered, the law as to adverse possession and extinguishment of title continues to be that in force prior to the commencement of the Land Registration Act 2002 on 13 October 2003.

So far as is known, no point has yet been taken before a court that the law of adverse possession in respect of unregistered land infringes the human rights legislation.

Registered land after 13.10.2003

Prior to the 131003, a squatter could acquire the right to be registered as proprietor of a registered estate if s/he had been in adverse possession of the land for a minimum of 12 years. The LRA 2002 has created a new regime that applies only to registered land after 13.10.2003. This new regime is set out in Schedule 6 to the Act.

It makes it more likely that a registered proprietor will be able to prevent an application for adverse possession of their land being completed. In brief overview of the new regime

Adverse possession of registered land for 12 years of itself will no longer affect the registered proprietor’s title (for registered land).

After 10 years’ adverse possession, the squatter will be entitled to apply to be registered as proprietor in place of the registered proprietor of the land.

On such an application being made the registered proprietor (and certain other persons interested in the land) will be notified and given the opportunity to oppose the application.

If the application is not opposed, the squatter will be registered as proprietor in place of the registered proprietor of the land.

If the application is opposed, it will be rejected unless either:

(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the squatter ought in the circumstances to be registered as proprietor
(b) the squatter is for some other reason entitled to be registered as proprietor, or
(c) the squatter has been in adverse possession of land adjacent to their own 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 and the estate to which the application relates was registered more than a year prior to the date of the application.

In the event that the application is rejected but the squatter remains in adverse possession for a further two years, they will then be able, subject to certain exceptions, to reapply to be registered as proprietor and this time will be so registered whether or not anyone opposes the application.

Adverse possession (for both registered and unregistered land) requires factual possession of the land, with the necessary intention to possess and without the owner’s consent.

It must be shown in most cases for registered land :

(a) the squatter 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

(b) that the squatter 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.

Factual Possession

In Powell v McFarlane, Slade J, in his remarkable judgment stated:

Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question 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 … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor 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.”

The House of Lords approved this statement of the law in J A Pye (Oxford) Ltd v. Graham.

Where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.

The Intention to Possess (animus possidendi)

In this case, what is required is not an intention to own or even an intention to acquire ownership but an intention to possess. What is required is the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow.

Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the same acts amounting to “factual possession”. But this will not always be so, as Slade J explained in Powell v McFarlane:

In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.”

Please note that cases may be heard in court or by the Adjudicator at HMLR.

Unregistered land (and Registered Land prior to 131003)

In relation to the above, it must be shown that:

(a) the squatter has factual possession of the land
(b) the squatter has the necessary intention to possess the land
(c) the squatter’s possession is without the owner’s consent, and
(d) (a) to (c ) inclusive have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application.

(a) and (b) have already been dealt with in connection with registered land and (c) is self evident. With regards to (d) Section 15(1) of the Limitation Act 1980 (as amended) states:

“No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

The right of action accrues, and so the limitation period starts to run, from the start of the adverse possession.

Please note that different limitation periods in respect of the Crown (which would include dissolved companies whose property is vested in the crown bona vacantia) and the Church and Corporations aggregate, such as the Church Commissioners, etc.

Limitation periods can also be extended in other cases.

Please note that cases may be heard in court or by the Adjudicator at HMLR.




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