If you have occupied a piece of land for a number of years, you may be able to claim ownership of the land using the adverse possession procedure.
Ownership in this context means Possessory Title. This is not quite as good as Title Absolute, which you would generally receive if you bought a plot of land. However, to most intents and purposes, Possessory Title means you ‘own’ the land.
Proving adverse possession
To claim adverse possession of a piece of land, firstly (and probably unsurprisingly), you must have possession of the land. This possession must be ‘adverse’. In this context, ‘adverse ‘ refers to the original owner’s title. If you rent or have been given permission to use the land, your possession is unlikely to be ‘adverse’.
Who else has access?
If for example, you have fenced-off an area with high barbed wire so no one else can access it, your possession is likely sufficient for adverse possession. However, these situations are rare. It is also difficult to determine whether you have had sole possession or if others have freely used the land. If others have had use, your possession may not meet the requirements for successfully claiming adverse possession.
Although, there have been cases where others being able to access the land was less fatal to an application. For example, an individual put down paving slabs on an open area of land to sometimes park on, but no one else used it. In this case, the individual treated the land as you would expect an owner to – paving and parking on it. The fact others were, in theory, able to access it was less of an issue when determining adverse possession. No one had accessed it and it was used as you would expect an owner to use their parking space.
Intention to possess
Using that same fence scenario, the primary reason for fencing the area is also important when proving adverse possession. You must be intending to possess the land.
For example, if the fence was built to prevent people from falling down an open mine shaft on abandoned land, the purpose of the fencing would be safety and not possession. If it’s just for safety and you have never been on to the land yourself, you may not succeed in claiming adverse possession, even though you have fenced the land off for a sufficient amount of time.
Intention to possess is usually easy to prove from the facts, assuming there is no mine shaft and the fence is there to keep people out.
Registered and unregistered land
When can you claim adverse possession of unregistered land?
You are entitled to apply to the Land Registry for Possessory Title of unregistered land after you have had possession of it for 12 years. A successful application will mean you become the ‘owner’ of the land. You must be able to prove possession in the ways previously mentioned in order to be successful.
Claiming adverse possession of registered land
After 10 years in possession of a piece of registered land, you are entitled to apply to the Land Registry for Possessory Title of the land that you are occupying. If your possession can be proven, a successful application will mean that you become the ‘owner’ of the land. However, those seeking to claim registered land should be aware of the ‘new’ rules involving objections and counter-notices.
Objections and counter-notices
Since 13 October 2003, a ‘new’ set of rules (although, no longer quite so new!) have applied to adverse possession claims involving registered land. An application for adverse possession of registered land will trigger a notice from the Land Registry to the ‘true owner’ of the land. The owner can object if they feel you do not meet the criteria and serve a counter-notice.
If a counter-notice is served, the application will fail unless one of the following exceptions apply:
- It can be reasonably argued that it was unfair for the ‘true owner’ to object to the application – E.g. you have built a mansion on the land and throughout the planning and build phases, the ‘true owner’ helped you with the build, knowing full well they were the owner.
- You are entitled to be registered as the owner for some other reason – E.g. you had actually paid for the land but there was an issue in the contract and it wasn’t technically transferred to you.
- The land in question is adjacent to yours and you have mistakenly been under the impression that you own it. The land must have been registered for over a year before the adverse possession application was made.
E.g. this usually occurs when a fence is built in good faith but in the wrong place. The strip of land between the ‘true’ boundary and the fence can generally be claimed by adverse possession if all other criteria are met and particularly where it is only a very nominal amount of land.
As you can see, adverse possession can be a very tricky issue to get to grips with. Despite there being some clear criteria, there unfortunately isn’t a ‘one size fits all’ approach. Different rules and time periods also apply where the land belongs to the ‘Crown’ (which also applies to Government Departments) or if the owner is incapacitated, for example.
Posted on June 6, 2019