ADVERSE POSSESSION

If you have been in physical possession of an area of land for 10 years or longer you may be entitled to apply to the land registry to become the registered owner, replacing the current owner, of that piece of land.

Our adverse possession experts have a wealth of experience advising clients in relation to the merits of their case, making the relevant Land Registry applications and assisting with any disputes that may arise.

In order to bring a possession claim.

• You need to have ‘factual possession’ of the land or an appropriate degree of physical control.
• The legal owner must not occupy the piece of land.
• You must intend to possess the land and your use must be ‘equivocal’.
• The owner of the land has not consented to you using the land.

There are also additional requirements to an adverse possession claim which vary depending on whether the land you want to claim is registered at the Land Registry or unregistered.

Under the Limitation Act 1980 an owner of land has no legal recourse to recover land 12 years after their action to recover arose. This means that if you occupy a piece of land for a period of 12 years or more, the owner is unable to object to any adverse possession claim.

If therefore you have occupied unregistered land for 12 years or more, our adverse possession solicitors can help you make an application to the Land Registry to register the land in your name.

Registered land means the title of the land is registered at the Land Registry with details of the current owner and anything else affecting the title such as mortgages and rights of way.

If the land you are occupying is registered at land registry, after ten years you are entitled to apply to the land registry to become the registered owner of it. The land registry will then contact the actual owner informing them of the application and giving them the opportunity to object.

If they do not object within two years you will then be registered as the proprietor.

If they do object to the application, then the adverse possession claim will fail unless:

1. You and the owner own adjoining land and:

• The boundary has not been determined.
• You are in adverse possession under the reasonable mistaken belief that you are the owner.
• The application relates to land registered more than a year prior.

2. It would be ‘unconscionable’ for the current owner to oppose the application.

3. There is another reason why the application should not fail. For example, if the land was left to you in Will but it was never legally transferred into your name.

If you occupy unregistered leasehold land the leaseholder losses the right to recover the land after 12 years.  The leaseholder however can still surrender the lease to the landlord (allowing the landlord to grant a lease to a new tenant and evict any trespassers). For this reason, the Land Registry will only allow a claim for adverse possession of leasehold land if:

• There is no registered freehold or leasehold reversion.
• There is very little chance of lease surrender which could lead to a possession claim.

Adverse possession claims of unregistered leaseholds are rare as the law states all leases over seven years must be registered.

If you occupy registered leasehold land for over 10 years, the leaseholder does not have the right to surrender the lease. Therefore, if the adverse possession claim is successful, the lease will be registered in your name.

However, you cannot claim adverse possession of the freehold title until the lease expires and you then occupy the land for 10 years.

If you have been notified of an adverse possession claim our adverse possession team can help you defend the application. This would include advice in relation to the application, preparing and filing any objections and providing advice and representation at any Tribunal proceedings.

No, it is not always necessary. We are experts in negotiation, so wherever possible we can help you settle the matter amicably. However, where it is necessary to go to court, we will fight your corner to enforce your rights.

If the Land Registry decides that there are grounds to object to an adverse possession claim they will recommend that the parties engage in alternative dispute resolution to settle the dispute without resorting to Tribunal proceedings. However, if alternative dispute resolution does not work for you, we will provide you with practical advice and robust representation during any Tribunal proceedings, so you have the best possible chance of the matter being settled positively in your favor.