Adverse possession solicitor, Mike Hansom, explains the procedure for applying for adverse possession of registered land. His article on adverse possession of unregistered land can be found here. Mike can be contacted by email, or on 01225 462871.
If you believe you satisfy the legal requirements to apply for adverse possession, before making an application it is important to know whether the land is registered or unregistered. While there are some common legal principles, the law and procedure involved are different in each case. Please note that if the land is registered and the possession began not later than 12 October 1991, the legal position is the same as for unregistered land.
What is the difference between Registered and Unregistered Land?
The central register maintained by the Land Registry records the identity of the legal owners of land, together with 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, which means that the legal owner has no central record of their interest and can only prove ownership by reference to a paper trail of documents, commonly referred to as “deeds”. However, since 1990 all sales or other transfers of land ownership must be registered within two months of completion.
How can I check whether land is registered or unregistered?
You can check whether or not a piece of land is registered by searching the Land Registry’s Index Map.
Applications for Adverse Possession of Registered Land
An application for adverse possession of registered land is made to the Land Registry on Form ADV1. The application should be accompanied by a formal document called a statutory declaration, which has been made not more than one month before the application. This document should set out clearly the evidence to show that the requirements for adverse possession have been satisfied.
Upon receipt of the application, the Land Registry will serve notice on the registered proprietor, who 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).
If the registered proprietor serves a counter notice, the application will be rejected unless the applicant is able to 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 as 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 – 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 are the owner of it. A common example of when this might apply is where, before you purchased your home, a boundary fence or wall was erected in the wrong position to the detriment of the neighbouring property. Throughout the period of your occupation, you have been unaware of that, reasonably believing that the boundary is delineated by the said fence or wall.
Applicants should beware that even if they rely upon one of these statutory conditions, their application may still fail. The Land Registry may not be convinced that the condition applies, and even if they are convinced, they are required to give the registered proprietor yet another opportunity to object, essentially on the grounds that the condition has not in fact been met. If an objection is raised, the application will be referred to the Land Registry’s dispute resolution process.
If the application for adverse possession is rejected, 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 proven because the land is unregistered and the deeds have been lost or destroyed.
Possessory title is open to challenge. But if a person is granted possessory title, after a further period of 12 years, an application can be made to upgrade to absolute title.
It should be noted that Mortgage lenders will be reluctant to lend against property with possessory title based on adverse possession. Finding a buyer may also be difficult unless a discount is offered to offset their risk and/or insurance cover is available to them.