Adverse Possession of Registered Land

While some common legal principles exist, the law and procedure for adverse possession differ depending on whether the land is registered or unregistered. For registered land, did the possession begin no later than 12 October 1991? If so, the legal position is the same as for adverse possession of unregistered land.

The difference between unregistered and registered Land

The central register maintained by the Land Registry records the identity of the legal owners of land. It also records:

• all rights benefiting the property;
• rights over the property; and
• any covenants, charges, or restrictions.

Although registration began in 1862, it has proved to be a lengthy undertaking. Even today, according to the Land Registry, around 14% of land remains unregistered. This means the legal owner has no central record of their interest and can only prove ownership by referencing a paper trail of documents, commonly called “deeds”. However, since 1990, all sales or other land ownership transfers have been registrable within two months of completion.

Applications for Adverse Possession of Registered Land

To apply to the Land Registry for adverse possession of registered land, use Form ADV1. A formal document called a statutory declaration must accompany the application. The statutory declaration must not be more than one month old. It should set out clearly the evidence to show that the requirements for adverse possession are satisfied. Upon receipt of the application, the Land Registry will notify the registered proprietor. The proprietor then has a generous period of time (65 business days) to either:

• consent to the application;
• require the Land Registrar to deal with the application under paragraph 5 of Schedule 6 to the Land Registration Act 2002 (usually referred to as serving a ‘counter notice’); or
• object to the application on another ground (specified by the registered proprietor).

Adverse possession counter notice

Service of a counter notice by the registered proprietor will result in the application’s rejection unless the applicant can rely upon one of the following statutory conditions:

• “It would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant and the circumstances are such that the applicant ought to be registered as the proprietor.” In practice, this is difficult to satisfy. The applicant will need to demonstrate that the registered proprietor encouraged or allowed them to believe that they owned the land, and to the knowledge of the registered proprietor, this caused the applicant to act to their detriment (for example, spending money the upkeep or improvement of the land) to the extent that it would be unconscionable for the registered proprietor to deny the applicant the rights they believed they had.
• “The applicant is for some other reason entitled to be registered as the proprietor of the estate.” While this may at first seem to be an encouraging catch-all, in reality the word ‘entitled’ has been interpreted rigidly. In one case where it was held to apply, the applicant was actually entitled to the land under the rules of intestacy following the registered proprietor’s death.
• The final condition is lengthy and best summarised as follows – the applicant has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they own it. A common example of when this might apply is when somebody erected a boundary fence or wall in the wrong position before you purchased your home to the detriment of the neighbouring property. Throughout the period of your occupation, you have been unaware of that, reasonably believing that the fence or wall delineates your boundary.

Land Registry’s dispute resolution process

Applicants should beware that their application may still fail even if they rely upon one of these statutory conditions. The Land Registry must be convinced that the condition applies. But even if they believe it applies, the registered proprietor has yet another opportunity to object. This is essentially on the grounds that the condition has not, in fact, been met. An objection will result in the application’s referral to the Land Registry’s dispute resolution process. On rejection of an application for adverse possession, the applicant must wait two years before they can submit another relating to that land.

What is possessory title?

‘Possessory title’ rather than ‘absolute title’ to a piece of land is granted by the Land Registry where a person’s title:

• is based upon adverse possession; or
• cannot be proved because the deeds to unregistered are lost or destroyed.

Possessory title remains open to challenge. However, a person granted possessory title can apply to upgrade to absolute title after a further period of 12 years.
Note that mortgage lenders will be reluctant to lend against property with possessory title based on adverse possession. Finding a buyer may also be difficult without a significant discount to offset their risk and/or insurance cover is available to them.