Adverse Possession – an explanation

Adverse possession means acquiring legal ownership of land by possessing it without the owner’s permission for a long enough period, while behaving as if you are the true owner. Full explanation here: HM Land Registry’s Practice Guide 4 and case law.

A brief overview:

Prior to the coming into force of the Land Registration Act 2002, a squatter could acquire the right to be registered as proprietor of a registered estate if they had been in adverse possession of the land for a minimum of 12 years. However, the doctrine of adverse possession did not fit easily with the concept of indefeasibility of title that underlies the system of land registration. Nor could it be justified by the uncertainties as to ownership which can arise where land is unregistered; the legal estate is vested in the registered proprietor and they are identified in the register.

The Land Registration Act 2002 has created a new regime that applies only to registered land. This new regime is set out in Schedule 6 to the Act. It makes it more likely that a registered proprietor will be able to prevent an application for adverse possession of their land being completed. The following paragraphs provide a brief overview of the new regime; the remaining sections of this guide discuss it in more detail.

adverse possession of registered land for 12 years of itself will no longer affect the registered proprietor’s title
after 10 years’ adverse possession, the squatter will be entitled to apply to be registered as proprietor in place of the registered proprietor of the land
on such an application being made the registered proprietor (and certain other persons interested in the land) will be notified and given the opportunity to oppose the application
if the application is not opposed (by ‘opposed’ we mean that a counter notice is served; see Giving counter notice to the registrar in response to notice. Instead, or at the same time, the registered proprietor may object to the application on the ground that there has not been the necessary 10 years’ adverse possession; see Objecting to the squatter’s application for the implications of such an objection.), the squatter will be registered as proprietor in place of the registered proprietor of the land
if the application is opposed, it will be rejected unless either
- it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the squatter ought in the circumstances to be registered as proprietor
- the squatter is for some other reason entitled to be registered as proprietor
- the squatter has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.
in the event that the application is rejected but the squatter remains in adverse possession for a further 2 years, they will then be able, subject to certain exceptions, to reapply to be registered as proprietor and this time will be so registered whether or not anyone opposes the application

Key elements of a valid adverse possession claim below (simplified):

1. Factual possession

You must physically control the land as an owner would. Examples from case law include:

fencing it off
maintaining it
excluding others
storing items or grazing animals

The possession must be exclusive and continuous.

2. Intention to possess (animus possidendi)

You must show you intended to possess the land to the exclusion of all others, including the true owner.

3. Without the owner’s consent

If the owner allowed you to use the land, it is not adverse possession.

4. For the required time period

Registered land: 10 years before you can apply to be registered as owner.
Unregistered land: 12 years (Limitation Act 1980).

Under the Land Registration Act 2002, the registered owner is notified and can oppose the application.

What happens when you apply? (Registered land).

After 10 years of adverse possession, you may apply to HM Land Registry to be registered as the new owner. The current owner is notified and can object. If they object, the application is normally rejected unless: