Adverse possession is the means by which a person who is not the legal owner of land can acquire legal title to the land by possession over a period of time.
An application for adverse possession may be required where, for example, the proprietor of unregistered land cannot prove documentary title to the whole demise upon first registration.
Prior to the coming into force of the Land Registration Act 2002 (LRA 2002) on 13 October 2003, the law on adverse possession applied in broadly the same manner to registered land as to unregistered land. From 13 October 2003, there are two regimes in respect of the acquisition of land by adverse of possession:
- the regime applicable to registered estates under the LRA 2002;
- the old regime, which applies only to unregistered land and registered land where the possession relied upon is for a period of at least 12 years ending before 13 October 2003.
The following essential elements of adverse possession are common to both regimes:
- The squatter must have factual possession of the land. This requires an appropriate degree of physical control and evidence that the possessor has been dealing with the land as an occupying owner might be expected to deal with it.
The land must have been in the squatter’s factual possession for the requisite period, which is 12 years under the old regime and 10 years under the new regime.
- The squatter must have the necessary intention to possess the land. This means the intention to exclude the world at large, including the holder of the paper title, so far as reasonably practicable and so for as the law will allow. Such an intention is often established by the acts making up factual possession.
- The possession of the land must be without the owner’s consent.
However, the new regime makes its more likely that the application will be defeated by the registered proprietor. If an application is opposed, it will be rejected unless the squatter can satisfy one of the three conditions specified in paragraph 5 of Schedule 6 of the LRA 2002.
Prospective applicants should seek legal advice at an early stage to ensure that the application proceeds smoothly.
For more information, please contact our property teams: