Acquiring Land by Adverse Possession Explained
What is adverse possession?
Adverse possession is when someone occupies another person’s land without permission. This is colloquially referred to as ‘squatter’s rights’.
The principle of adverse possession can be surprising to some people in that an individual who is not the legal owner of land can become the legal owner by using the land in the appropriate manner for the required time periods. To acquire land by adverse possession a claim is made to HM Land Registry.
How do you claim adverse possession?
There are four main elements to making a successful claim for adverse possession.
- Factual possession - this consists of exercising a sufficient degree of exclusive control over the land. The form that ‘sufficient control’ takes, largely depends on the circumstances, particularly the nature of the land in question. An example includes putting fencing around otherwise open land at the exclusion of other people. This would be strong evidence of factual possession.
- Intention to possess - this means using the land as your own, incurring costs to maintain it and keeping it in good condition. It is not enough for the individual to use the land for the required time period, the possession must go beyond this with evidence the land has been treated as if it were their own.
- Without owner’s consent – the use of the land must be entirely without the landowner’s consent. Occupying under a lease, licence, tenancy or otherwise with permission means that the use of the land is not adverse.
- 10 or 12 year time period - If the land is already registered at HM Land Registry, you need to show the land has been used in accordance with the three elements above for 10 years. If the land is unregistered, you will need to demonstrate that the land has been used for 12 years.
What proof is required for adverse possession?
It is useful to provide HM Land Registry with as much information as possible on your adverse possession claim to aid them in establishing the exact ownership of the land.
Some examples of evidence you can expect HM Land Registry to request are:
- Statement of Truth - This helps HM Land Registry understand from your perspective how the land has been used.
- Photographs - This provides a visual aid to HM Land Registry of how the land has been used.
- Plans - Supplying plans enables HM Land Registry to decipher things such as whether the land is a public highway or common land and town and village greens.
- Invoices - There may be receipts or invoices from contractors that have carried out works to the land.
What happens after an application is made?
If the adverse possession claim is in relation to registered land, HM Land Registry will serve notice on the registered owner of the land. The registered owner then has the opportunity to oppose the adverse possession application using Land Registry Form NAP. This is just one of the many reasons it is extremely important that a registered owner of land or property keeps their title up to date (with the correct service address especially) – to ensure notice is received of any attempt to obtain adverse possession.
If an objection is not received and the application is not opposed the person making the claim will be registered as legal owner of the land in place of the previous owner.
If a legitimate objection is received, the Land Registry will likely reject the adverse possession claim. There are, though, specific circumstances in which the claim may still be successful.
If an application for adverse possession is rejected as a result of an objection being received that same person can reapply to be registered as legal owner at a later date - provided that they remain in adverse possession for a further 2 years from the date of rejection of the previous application.
If the adverse possession claim is in relation to unregistered land, 12 years of adverse possession extinguishes the paper owner’s legal title. At that point, they lose their right to recover possession of the land. The person in possession acquires possessory title.
Practical Insight
Adverse possession claims are becoming more and more difficult to assert. There has been recent case law in this regard:
Thorpe v Frank [2019]
In this case, the act of paving an area of land was held to constitute a sufficient degree of exclusive physical control as to amount to ‘factual possession’.
White & another v Amirtharaja & another [2022] EWCA Civ 11
The dispute between the parties involved the ownership of a passageway which ran behind the house of the Whites, and between an office and a workshop (which belonged to the Amirtharajas). The claimants (the Whites) claimed title to the passageway by way of adverse possession by their predecessor in title who has lived at their property for the 40 years previous. Going all the way to the Court of Appeal, the Whites claim was rejected as the previous owner did not show sufficient intention to “possess” the passageway. This case re-asserts the established position in the case of Powell v McFarlane, specifically that to obtain adverse possession, there must be a clear intention to ‘exclude the world at large’.
Commonly asked questions
How successful will my application for adverse possession be?
This will vary on a case by case basis. To ensure your application has the best chance of success including as much detail and evidence as possible is key!
How long does an adverse possession claim take?
Again, this will vary case by case. The HM Land Registry will review the application including all evidence supplied and may determine that a site visit is required.
How much does an adverse possession claim cost?
An application fee will be payable to HM Land Registry with any application for adverse possession. This can range from £70 to £130 depending on whether the land is registered or unregistered. The legal fees must also be taken into account in terms of preparation of the application and the fees for obtaining title documents.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.
