Adverse possession solicitor, Mike Hansom, explains the legal requirements for claiming adverse possession of land. Mike can be contacted by email, or on 01225 462871.
Adverse possession is known colloquially as “squatters’ rights”. This tends to conjure an image of trespassers in a building and a delay of days or weeks before they can be evicted while the legal process is completed. Adverse possession describes the rights to own a piece of land that can be acquired after the passage of 10 years or more. This area of law could apply to a small strip of your garden.
Use it or lose it
Historically, there was a strong belief that an owner of land should use it productively. Land is a finite resource, so if it was not being used, it was felt that somebody else should have the benefit of it. Literally – use it or lose it. As a result of that philosophy, the principle of adverse possession has developed in English law.
Today, if you are trespassing on somebody else’s property and you satisfy certain legal requirements, you can acquire title to it. However, as you might expect, this is far from straightforward and it certainly does not happen overnight. As we shall see below, acquiring adverse possession takes many years. Whether you are a “squatter” wishing to acquire title, or the person with title raising objection, you are strongly advised to take expert legal advice at the earliest opportunity.
Proving adverse possession
In order to claim adverse possession of land, you must be able to prove that:
- you have been in factual possession of the land for the required period (for which see below);
- you have the necessary intention to possess the land; and;
- your possession is adverse, ie without the title owner’s consent, without force, and without secrecy. For Latin fans this is summarised as “nec vi nec clam nec precario”.
Possession is not the same as occupation or use, but is concerned with who is in control of land. Placing a lock on a gate can amount to taking possession, even if that person only then visits the site occasionally. If the ‘true’ paper owner does not act to re-take the land, they may lose the right to evict the squatter after 10 or 12 years, depending on whether the land is registered and when the squatter dispossessed them.
Often, who is in factual possession of the land and their intention to possess it is clear from the facts. The most obvious instance of a person taking possession is to erect fencing that encloses the land and excludes the true owner, but other activities such as cutting the grass can be evidence of intention to possess, though this is not always conclusive. Whatever the activity, for the rights to accrue it usually needs to be clear to the true owner that they have been dispossessed.
As a result of a change in the law in 2003, it is less common now for ownership of large parcels of land to change under adverse possession. However, it is reasonably common for adverse possession to play a part when the deeds are unclear. Frequently landowners discover not all the land they thought was theirs actually belongs to them ‘on paper’, especially with older deeds. If they can prove they have been in possession for at least 10 years (or 12 depending on the circumstances), they will usually be able to successfully register that additional land as their own.
How long must you adversely possess in order to claim title?
Although the requirements set out above relate to all claims for adverse possession, different rules apply to the process depending upon whether:
- the claim relates to unregistered land and/or where your claim is based on possession prior to the 13th October 2003 (which was the date the Land Registration Act 2002 came into force); or,
- the claim relates to registered land and the period of adverse possession is after that date.
It is over 150 years since property began to be registered in England and Wales and nearly 100 years since the mechanism for compulsory registration was put in place. As such, the vast majority of land is now registered, but you cannot simply assume that to be the case. A search of the Index Map at the Land Registry will identify whether or not the land is registered.
If the land is registered, you can apply to acquire title after 10 years of adverse possession. For unregistered land and registered land where the possession began not later than 12 October 1991, the required period is 12 years.
Procedure for claiming adverse possession
For the procedure for claiming adverse possession, see: