What to do when you don’t own the land? Claiming adverse possession

During the course of land assembly exercises or the purchase or sale of plots of land, occasionally a parcel of land is identified which is either unregistered or is registered to a third party and in both cases, a client may have been using that parcel as if it were their own for a period of years. Where such a scenario arises, it is possible that ownership of the land can be claimed. This process is known as adverse possession and arises through uninterrupted possession of the land for a required period of time and in a requisite manner. The process is also sometimes known as claiming “squatter’s rights”.

Establishing Adverse Possession

There are two statutory regimes which govern the process of making an adverse possession claim:-

1. Land Registration Act 1925 for unregistered land (and registered land where the possession period relied on is of at least 12 years ending before 13/10/2003); and
2. Land Registration Act 2002 for registered land (except where the possession period is of at least 12 years ending before 13/10/2003)

Under both regimes the person making the adverse possession claim must have been in uninterrupted possession for the requisite period. This period is 12 years for unregistered land and registered land where the period relied on ends before 13/10/2003, and 10 years for all other registered land. In counting the requisite period, continuous periods of adverse possession enjoyed by successive parties can be aggregated to achieve the required period.

For a claim to be successful, the person in question must prove two elements – factual possession and an intention to possess the land in question. Though there is much case law in this area, some key features of these elements are as follows:-

1 – Factual Possession

• The person claiming must have sufficient exclusive physical control over the land concerned and this is determined by considering the circumstances of the claim. Generally however, the person claiming must have been dealing with and using the land as their own (without another party doing the same).
• Possession must be of the whole of the land concerned, not just part.
• Possession must be continuous. The original owner only needs to resume possession for a very short period of time to interrupt the possession period, but this interruption must be an act which ends the person’s exclusive possession, rather than one which just challenges their right to possess it (for example, the service of a notice challenging possession alone would not be enough).

2 – Intention to Possess

The person making the claim must demonstrate an intention to possess the land throughout the period ‘on one’s own behalf, for one’s own benefit, and to the exclusion of all others, including the [actual] owner ’  Powell v McFarlane (1977).

Acts of possession which have been considered by the Court in respect of adverse possession claims include the erection of fencing to control access to the land. Similarly, controlling access to land by locking gates has also been considered as strong evidence for an intention to possess, although in the recent case of White v Amirtharaja 2022 controlling access to a lockable passageway by such means was not sufficient to make the claim successful, as the claimant could not prove they had intended to “exclude the world at large”. Cultivating land and planting trees also provides strong evidence in the right circumstances.

How to make a claim

Adverse possession claims are made to the Land Registry. The prescribed form of the application depends on whether the land is registered or unregistered and which statutory regime applies. With both types of application however, evidence must be provided and this will need to include one or more statements of truth / statutory declarations.

Sharpe Pritchard advise clients on adverse possession claims and assist in making as well as opposing claims – should you require assistance or further advice, please contact our Real Estate Team.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.