Adverse possession

Introduction

Adverse possession is a mechanism which allows a trespasser to acquire title to land and to displace the rights of the ‘paper owner’. It is based on the principle of limitation of actions whereby an action in the courts becomes ‘statute-barred’ after a certain period of time.

Adverse possession is commonly referred to as squatter’s possession or rights. Squatters rights occur when someone takes over a piece of land that belongs to someone else (legal/paper owner) and uses it for his or her own benefit. After a certain period of time the squatter can claim the land as his or her own, however, there is a very strict criterion which a squatter has to fulfil.

Conditions for Adverse Possession

  1. There must be a discontinuance of possession by the legal/paper owner followed by possession by the squatter or dispossession of the paper/legal owner by the squatter
  2. The squatter must hold a possession, which must be
  • Factual possession
  • Open
  • The squatter must have an intention to possess the land
  • The possession must be adverse
  1. The squatter must not have acknowledged the paper/legal owner’s title in writing

Once these conditions are met by a squatter and he/she has accumulated the required “TIME PERIOD”, a squatter may have claim under adverse possession

First Condition

Discontinuance of Possession by Paper owner

There must be a discontinuance of possession by the paper owner or dispossession of the paper owner by the squatter

  • Ownership of the land is established by holding a title deed (unregistered land) or by the entry of the owner’s name on the Proprietorship Register with H.M. Land Registry. (Registered Land)
  • Possession of the land is demonstrated by living on the land, carrying out different activities on the land, cultivating it and by exploiting the amenities.
  • Where a paper/legal owner stops these activities for whatever reason it will show that there is a discontinuance of possession
  • If a trespasser moves in and secures the boundary to exclude everyone, installs gates or locks the doors, plants fruit and vegetables etc. it will show that the trespasser is in possession or intends to possess the land
  • Where a trespasser/squatter takes possession of the paper/legal owner’s land and the owner does not object or reclaim the possession, it will amount to disposition of the paper owner by the squatter
  • Adverse in law simply means that the possession has occurred without the consent of the paper owner
  • A paper owner may ask his/her friends or relatives to occupy the land and this will amount to repossession of the land

Example

  1. Miranda saw barren land and started erecting a fence around its boundary. After securing the whole of the land she installed a gate and locked the gate when she was not around. She also planted herbs, vegetables and fruits. Steve is the legal owner of the land but he has not visited the land for some time and so is not aware of Miranda’s possession.

Steve has effectively discontinued the possession.

  1. Miranda saw barren land and started erecting a fence around its boundary. After securing the whole land she installed a gate and locked the gate when she was not around. She also planted herbs, vegetables and fruits. Steve is the legal owner of the land but he has not visited the land for some time however he is told by his friends regularly that somebody has occupied his land and he has not sorted it out yet or reclaimed the possession

This will be referred as dispossession of the paper owner (Steve) by the squatter (Miranda)

Second Condition

Possession of land by Squatter

There must be a Factual Possession by a squatter and he/she must also hold an intention to possess as well

Factual Possession

By factual possession, we mean an appropriate degree of physical control, what could be an appropriate physical control will depend on the nature of the land.

Example

Putting up a fence to keep everybody out of the land, putting new locks or installing a new gate, planting flowers, grazing, rolling, harrowing, fertilising the land etc. will give rise to a factual possession

Open Possession

  • The possession must be open and must not be concealed or fraudulent. By open, it means that the possession has to be such that if a paper owner was given the opportunity to visit the land, he/she could have easily established that someone else is in the occupation of the land.
  • A concealed possession will not give rise to a claim under adverse possession

Intention to Possess

The intention with which a squatter obtains the possession of land will determine whether or not the squatter has an intention to possess. The intention must be in the squatter’s own name and on his own behalf, to exclude the world at large from the land. The squatter’s intention also includes an intention to keep the paper/legal owner away from the land as well, as far as is reasonably practicable to do so.

The Possession must be Adverse

It simply means that the squatter or trespasser must be on the land without the permission of the landowner/paper owner/ legal owner. Any implied permission to occupy the land will affect the claim of a squatter under Adverse possession

Third Condition

The Squatter must not have acknowledged the paper owner’s title in writing

A written acknowledgement of the paper owner’s title by the squatter will stop the time running in the favour of the squatter and it will defeat his/her claim under adverse possession

An oral acknowledgement of the paper owner’s title will not or may not affect the claim of a squatter because of the difficulty of proving who said what, to whom, and when and where they said it.

Legal owner

A legal owner/ paper owner can obtain a possession order from a court, any other method of notice, for example, a written note to vacate the property, will not be effective.

Time Period Requirements (unregistered Land)

  • Once the above three conditions are fulfilled by a squatter, he/she must fulfil the period of time requirements for Adverse Possession as well
  • For unregistered land (please refer to Unregistered Land) the time period is 12 years
  • There must be 12 continuous years of occupancy
  • A paper owner can bring possession proceedings and a possession order from the court during these 12 years and the squatter’s claim will be defeated
  • There should not be any disability of the paper owner, by disability it means that the paper owner/legal owner should not be under the age of 18 years or suffer mental impairment and a patient under Mental Health Act 1983
  • There should also be no future interests in succession or in reversion for example, where land belongs to someone for a life time period and on the death of the life time interest holder the property goes to someone else under reversion or succession
  • Upon a successful claim, the paper owner’s/legal owner’s title will extinguish
  • The squatter will be the new owner and will hold the property as freehold
  • The squatter will be bound by any legal rights over the land, for example, easements rights of way etc.

Time Period Requirements (Registered Land)

  • A time period of at least 10 years is required where the land is registered land (please refer to Registered Land)
  • There must be 10 years continuous occupancy
  • There should not be any disability of the paper owner, by disability it means that the paper owner/legal owner should not be under the age of 18 years or suffer mental impairment and is a patient under the Mental Health Act 1983
  • There should also be no future interests in succession or in reversion for example, where land belongs to someone for a life time period and on the death of the owner who had life interest in the property and his property goes to someone else under reversion or succession
  • The squatter has to apply to H.M land registry to claim the title to the registered land
  • His application triggers a notification, by the Land Registry, to the registered proprietor who then has three months to object.
  • There must be no gap in time between the actual adverse possession and the date of an application to the Land Registrar
  • If the registered proprietor fails to object to the application within the required time period, the trespasser will automatically be registered as the new proprietor
  • If the registered proprietor objects within the required time period, the trespasser’s application will be refused unless one of the grounds provided below is satisfied

Further Grounds for a trespasser/squatter

  • An equity by estoppel has arisen, or
  • The applicant is entitled to be registered as the proprietor for some other reason or
  • The application relates to a boundary dispute or
  • The squatter’s application was rejected however, he/she has remained in possession for a further two years

Upon a successful claim for registered land, the squatter’s name will be inserted as the proprietor on the Proprietorship Register instead of the existing registered proprietor’s name. The squatter/ trespasser upon acquiring the property/land will be bound by any legal obligations or legal rights over the land, for example, easements, rights of way etc.

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.

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