One of the questions which frequently comes across my desk is that of ownership of land. A typical example is that I can be instructed by a seller, obtain the title plan to the property being sold from the Land Registry and when I show it to them they realise that in fact it does not correctly reflect the true extent of the property. They mention that when they purchased the property many years ago they realised that there was a disused area of the rear of the property and over time have made it part of the garden by planting conifers around the edges and building a garden shed. Nobody has raised any objections at all but certainly the buyer and the buyer’s solicitors will be raising enquiries as to the status of that area. They will be said legally to be in “adverse possession” and it will be my job to advise them on this issue.
So, what is adverse possession?
Adverse possession is the means by which a squatter can obtain title to land. The principle is that if an owner of land fails to remove a squatter within a certain period of time then the owner loses their title to the land and is barred from subsequently asserting a claim to the land. At first sight, it may seem surprising that the law should allow people to obtain title to land just by occupying it for a long time, but the reason is to protect innocent third parties and oblige owners of land to check on their land at least once in every 12 years to ensure that no unauthorised person is in occupation.
What must the squatter show?
- They have factual possession of the land and deal with it as if it where their own by e.g. planting trees, carrying out building works, parking a vehicle within a defined space etc.;
- Have the necessary intention to possess the land;
- Be in possession without the owner’s consent; and
- Have been in possession for the requisite period of time.
What is the “requisite period of time”?
Where land is unregistered, the squatter can acquire title by adverse possession of the land which is usually 12 years from the date upon which the right of action accrued. This date will be the day when the squatter went into occupation of the land with the intention to possess. The time limit is extended to 30 years for Crown land and land owned by the Church of England.
Where land is registered the squatter no longer automatically acquires ownership after being in possession for the required period and instead must apply to the Land Registry to become an owner. In this case the squatter must show that they have been in adverse possession for the period of 10 years ending on the date of the application. The Land Registry will then notify the registered proprietor that an application has been made and if an objection is raised a procedure has to be followed to satisfy the Land Registry that such an application is warranted.
Some practical advice to ensure that you are protected against a claim for adverse possession :
- Inspect your property regularly to ensure nobody is using it.
- Make sure that the Land Registry has your current address shown on the proprietorship register. If then the Land Registry receive an application by a squatter you can be sure to be notified and be given the opportunity to defeat any such claim.
- If you are concerned that your boundaries are not clear there is a procedure at the Land Registry for the boundaries to be fixed. This will then prevent the squatter from establishing one of the conditions that need to be fulfilled and subsequently being entitled to be registered as proprietor.
- If anybody is in occupation of your land you could formalise the arrangement with their consent by granting a formal tenancy or licence.
In all these situations, it will be necessary to retain a solicitor to consider your situation and the above is an overview of what can be a complex area.