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Contents
- What is the difference between registered and unregistered Land?
- What is adverse possession?
- Proving adverse possession
- How to prove adverse possession
- How long must you adversely possess to claim title?
- Applications for Adverse Possession of Unregistered Land
- Adverse possession procedure
- What is possessory title?
- Adverse possession solicitors
What is the difference between registered and unregistered Land?
Since 1925, a compulsory land registration system has been in place in England and Wales. And since 1990, all sales and other land ownership transfers require registration within two months of completion.
The central register maintained by the Land Registry records the identity of the legal owners of land. Also recorded are:
- all rights benefiting the land;
- all rights over the land; and
- any applicable covenants, charges, or restrictions.
But you cannot simply assume that a piece of land is registered. Indeed, around 13% of land in England and Wales remains unregistered. That means the legal owner has no central record of their interest. Consequently, they can only prove ownership by referencing a paper trail of documents, commonly called “deeds”.
Confirm the registration status of a piece of land by searching the Index Map at the Land Registry.
What is adverse possession?
Historically, there was a strong belief that an owner of land should use it productively. That’s because land is a finite resource, so if not used, somebody else should benefit from it. Literally – use it or lose it. As a result of that philosophy, the principle of adverse possession developed in English law.
Today, a trespasser satisfying certain legal requirements may acquire title to the land. But as you might expect, this is far from straightforward and certainly does not happen overnight. Instead, acquiring adverse possession takes many years.
Although adverse possession (also referred to colloquially as ‘squatter’s rights’) may apply to a large parcel of land, more commonly, it relates to a small strip of garden.
Proving adverse possession
To claim adverse possession of land, you must prove the following:
- factual possession of the land for the required period (for which see below);
- the necessary intention to possess the land; and
- your possession is adverse, ie without the title owner’s consent, without force, and without secrecy. For Latin fans – ‘nec vi, nec clam, nec precario’.
Crucially, possession is not the same as occupation or use but is concerned with who controls the land. For example, placing a lock on a gate can amount to taking possession, even if that person only then visits the land occasionally. The ‘true’ paper owner must act to re-take the land or face losing the right to evict the squatter.
How to prove adverse possession
Often, the person in actual possession of the land and their intention to possess it is clear from the facts. The most obvious example is a squatter erecting a fence around the land, excluding the true owner. But other activities such as cutting the grass might suffice as evidence of intention to possess. However, that’s not always conclusive.
Whatever the activity, the reality of dispossession must be clear to the ‘true’ paper owner for the rights to accrue.
How long must you adversely possess to claim title?
Although the requirements set out above relate to all claims for adverse possession, different rules apply to the process depending on whether:
- the claim relates to unregistered land and/or where possession began before the 13 October 2003 (the date the Land Registration Act 2002 came into force); or,
- the claim relates to registered land, and the period of adverse possession began after that date.
You can acquire title to registered land after 10 years of adverse possession. For unregistered land, and registered land where the possession began no later than 12 October 1991, the required period is 12 years.
See also: Adverse Possession of Registered Land
Applications for adverse possession of unregistered land
The Limitation Act 1980 governs adverse possession of unregistered land. Subject to certain exceptions, 12 years of adverse possession extinguishes the paper owner’s legal title. At that point, they lose their right to recover possession of the land. The person in possession acquires possessory title (see below).
To formalise their interest, the person in possession must then apply to the Land Registry for first registration using Form FR1. Before doing so, they should first carry out:
- (if they have not already done so) a search of the index map to confirm the registration status.
- a land charges search against their own name and, if known, the names of the paper owner(s) and any previous owner(s).
- any other relevant searches, eg a company search if the paper owner is a company, or a commons registration search.
A formal document called a statutory declaration should accompany the application. The statutory declaration:
- must not be more than one month old; and
- will set out clearly the evidence showing the legal requirements for adverse possession are satisfied.
Adverse possession procedure
The Land Registry gives notice of the application for first registration to anyone they consider may have an interest in the land. However, its unregistered status often means it’s difficult to identify anybody upon whom to serve notice. Applications involving unregistered land often succeed simply because the ‘true’ owner may never be aware of it. Also, a potential owner’s proof of ownership exists only in the original title deeds. If those cannot be located, proving ownership is difficult.
If the paper owner or anybody else with an interest in the land objects to the application, and the registrar decides that their objection is not groundless:
- the applicant receives notice of the objection; and
- asks the parties whether they wish to negotiate and if they believe agreement is likely.
Should the parties wish to negotiate, the registrar allows them time to attempt to settle the matter amicably. However, as soon as it becomes clear that agreement is not possible, or the parties refuse to negotiate, the registrar must immediately refer the matter to the First-tier Tribunal (Property Chamber) (“the Tribunal”). In most cases, the Tribunal sets a date to hear the matter, but they may instead direct one of the parties to commence court proceedings.
What is possessory title?
The Land Registry grants ‘possessory title’ rather than ‘absolute title’ to a piece of land where:
- adverse possession is the basis of a person’s title; or
- where title to unregistered land is not provable because the deeds have been lost or destroyed.
A person granted possessory title can apply to upgrade to absolute title after a further period of 12 years.
It’s important to remember that mortgage lenders are reluctant to lend against property with possessory title based on adverse possession. Typically, finding a buyer is also difficult without:
- a significant discount to offset their risk; and/or
- insurance cover against the risk.
Adverse possession solicitors
As you will see, the law on adverse possession is complex, and cases are rarely straightforward. Before taking any steps towards claiming title, call us for specialist advice on 01225 462871. As adverse possession solicitors, we have considerable experience in such cases and can help you achieve your desired outcome.
