Adverse possession solicitor, Mike Hansom, explains the procedure for applying for adverse possession of unregistered land. His article on adverse possession of registered 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 Unregistered Land
Adverse possession of unregistered land is governed by the Limitation Act 1980. Subject to certain exceptions, after 12 years of adverse possession, the paper owner’s legal title is extinguished and their right to recover possession of the land is barred, with the person in possession acquiring possessory title (see below).
To formalise their interest, the person in possession can then apply to the Land Registry for first registration using Form FR1. Before doing so, they should first carry out:
- (if they have not already done so) a search of the index map to confirm whether or not the land is registered;
- a land charges search against their own name and, if known, the names of the paper owner(s) and any previous owner(s);
- any other relevant searches (eg a company search if the paper owner is a company, or a commons registration search).
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 will set out clearly the evidence to show that the legal requirements for adverse possession have been satisfied.
Procedure upon making the application
The Land Registry will give notice of the application for first registration to anyone it considers may have an interest in the land. However, by the very fact that the land is unregistered, in many cases it will be difficult to identify anybody upon whom to serve notice. Applications involving unregistered land are often successful simply because the owner may never be aware of it. And even if a potential owner is identified, their proof of ownership will exist only in the original title deeds. If those cannot be located, it will be difficult for them to prove ownership.
If the paper owner or anybody else with an interest in the land objects to the application, and the registrar decides that their objection is not groundless:
- notice of the objection will be given to the applicant; and
- both parties will be asked whether they wish to negotiate and whether they believe they can reach an agreement.
If all parties wish to negotiate, the registrar will allow them time to attempt to settle the matter amicably. However, as soon as it becomes clear that agreement is not possible, or the parties refuse to negotiate, the registrar must immediately refer the matter to the First-tier Tribunal (Property Chamber) (“the Tribunal”). In most cases, the Tribunal will set a date to hear the matter, but they may instead direct one of the parties to commence court proceedings.
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.
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.