What is adverse possession and how does it work?

What is adverse possession

A person who has been in occupation of a property or land for a long time may claim “squatter’s rights”. This is known in the legal world as a claim for adverse possession. There are various circumstances where this situation can arise, such as when the legal owner is unknown or a building or parcel of land is unclaimed or abandoned. Adverse possession was subject to much controversy and ambiguity until the Land Registration Act 2002 came into force.

This article will explore the requirements and the process for making an adverse possession claim.

Advantages of adverse possession

There are many advantages to formally making a claim to HM Land Registry for adverse possession.

Firstly, and most importantly, a successful applicant will be formally registered on the property or land’s title.

Furthermore, as you would be formally registered on the title, this removes the risk of somebody else claiming that you have no right to be in the property or on the land.

Moreover, if you wish to make changes to the property which require third-party approval, such as planning permission from a Council, it is much easier to obtain consent to do so.

Another important benefit is that, once registered on the title, you have a legal right to sell, and make a profit from, the property or land. A squatter, who is not registered on the title, would not be able to sell the property or land as they would not be able to prove to a purchaser’s solicitor or conveyancer that they legally own the property.

What are the requirements?

1. Factual possession

The squatter’s possession of the land must be uninterrupted. The squatter must be able to show that they have had sufficient exclusive physical control of the property or land. What is sufficient depends on the circumstances; essentially, the squatter must have been dealing with the property or the land as an occupying owner might have been expected to deal with it. Furthermore, nobody else must have done so.

The squatter must prove factual possession of the property or land. This must be possession of the whole of the property or land, not just of part of it. Interestingly, the adverse possession does not need to be apparent to anybody inspecting the land, as ruled in Wretham v Ross and Shaw [2005].

In order to prove factual possession, a squatter needs to prove possession for a specific length of time; this is known as the requisite period.

The relevant requisite periods are as follows:

• If the land is registered and the period of occupation ends after 13 October 2003: 10 years
   
• If the land is registered and the period of occupation ends before 13 October 2003: 12 years
   
• If the land is unregistered: 12 years

Possession of the property or land must be continuous throughout this period.

2. Intention to possess

As the squatter’s possession is without the owner’s consent, they must be able to prove that they intended to occupy the land as their own during the period of possession. This must be in their own name, on their own behalf and to the exclusion of all others (including the actual, or ‘paper’, owner).

Possession cannot be adverse if the true paper owner has consented to the occupation; this would amount to an express right to occupy, such as a tenancy or a licence.

What is the process?

HM Land Registry application

If a squatter has satisfied the above criteria, they can apply to HM Land Registry to have their name registered on the title. This would give the squatter a legal right to the property or land which they have adversely possessed. An application fee is payable to the Land Registry with any adverse possession claim. This ranges from £70 to £130 depending on whether or not the Land is registered.

The appropriate form to use is an ADV1, which should be submitted with either a statutory declaration or a statement of truth.

Upon application, HM Land Registry will notify the registered proprietor of the property or land (if there is one) and any other persons interested in the land, such as the local authority, and these persons will have an opportunity to oppose the application by serving a counter-notice. If the application is not opposed, the squatter will be registered as the proprietor on the title.

If the application is opposed, HM Land Registry will reject it unless either:

• It would be unconscionable because of the registered proprietor’s past conduct (this is known as equity by estoppel);
   
• The squatter is, for some other reason, entitled to be registered as a proprietor; or
   
• 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.

If the application is rejected, but the squatter remains in adverse possession for a further two years, they will be able to reapply for possession. This time they will be registered whether or not anyone opposes the application.

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