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Antony Antoniou – Luxury Property Expert

Antony Antoniou

Adverse possession what you need to know

Adverse Possession

Adverse possession what you need to know

 

Are you aware that your land, part of your land, or even your property can be taken legally, using the law of ‘Adverse possession’ ?

How does it work?

If someone takes possession of land, part of, or an entire property for a period of 12 years, they can make an application to the land registry for ‘title absolute’ and the land or property becomes theirs.

It’s not as simple as that of course, there are certain conditions and following the Land Registration Act 2002, there is a legal pathway that needs to be observed., but nevertheless, it can be done, it has been done and applications are presented to the land registry continually. There is a Grey area with regards to adverse possession, in that to succeed in your application, you are for the main part, required to be a squatter and under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, squatting in residential property became a criminal offence on 1 September 2012.

However, that is not always the case, here are a few examples:

(a) You spot a vacant property, that looks abandoned, there are many throughout the UK, for example, the owners moved to Australia in the seventies, under the assisted scheme and the owners of the property died in Australia leaving no beneficiaries in their will, or their children do not even know about the property in the UK. Perhaps the owner died in another town, with no heirs, or intestate (no will) and nobody knows about the property they owned. if they die in the same town, the local council normally finds out and they take possession if they can.

In this situation, you replace the lock, enabling you to have unhindered access to the property, which you should document to prove the time that you have had this access. On the tenth year (for registered property) that you have had  possession WITHOUT the owners permission:

“Possession is never ‘adverse’ within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner of the paper title.”

You can then apply to the land registry for adverse possession, which will result in notification being sent to the owner (remember my article about updating your registered address on the deed) and if this is not contested, in the twelfth year, you will be granted title absolute.

(b) You live next door to a property that has lots of land and you use some of that land, WITHOUT the owners permission, but they do not notice, or take any action, the same applies, in that after a period of twelve years, you can claim that land and and although the owner will object, it may be too late.

Here is an example that actually happened:

One recent case involved a couple who owned a strip of land next to their home. They didn’t use it and so weren’t too concerned when a neighbour parked his car there. Nor did they see any problem when the neighbour fitted a chain between two posts to cordon off the area for his exclusive use.

This went on for 20 years until the couple discovered that the land had been removed from their title plan on the Land Registry’s official records. Instead, it appeared on their neighbour’s registered title. The couple took legal action to recover the land but lost their case. The adjudicator held that the neighbour had acquired title by adverse possession.

The neighbour still had a receipt for the chain and posts he had acquired 20 years earlier. This equipment demonstrated that he had intended to use and acquire the land. He had been allowed to use it unchallenged and was therefore entitled to claim ownership.

Here is some information from the government website, full details available HERE

 

 

1. The new regime: a brief overview

Prior to the coming into force of the Land Registration Act 2002, a squatter could acquire the right to be registered as proprietor of a registered estate if they had been in adverse possession of the land for a minimum of 12 years. However, the doctrine of adverse possession did not fit easily with the concept of indefeasibility of title that underlies the system of land registration. Nor could it be justified by the uncertainties as to ownership which can arise where land is unregistered; the legal estate is vested in the registered proprietor and they are identified in the register.

Prior to the coming into force of the Land Registration Act 2002, a squatter could acquire the right to be registered as proprietor of a registered estate if they had been in adverse possession of the land for a minimum of 12 years. However, the doctrine of adverse possession did not fit easily with the concept of indefeasibility of title that underlies the system of land registration. Nor could it be justified by the uncertainties as to ownership which can arise where land is unregistered; the legal estate is vested in the registered proprietor and they are identified in the register.

The Land Registration Act 2002 has created a new regime that applies only to registered land. This new regime is set out in Schedule 6 to the Act. It makes it more likely that a registered proprietor will be able to prevent an application for adverse possession of their land being completed. The following paragraphs provide a brief overview of the new regime; the remaining sections of this guide discuss it in more detail.

  • adverse possession of registered land for 12 years of itself will no longer affect the registered proprietor’s title
  • after 10 years’ adverse possession, the squatter will be entitled to apply to be registered as proprietor in place of the registered proprietor of the land
  • on such an application being made the registered proprietor (and certain other persons interested in the land) will be notified and given the opportunity to oppose the application
  • if the application is not opposed (by ‘opposed’ we mean that a counter notice is served; see Giving counter notice to the registrar in response to notice. Instead, or at the same time, the registered proprietor may object to the application on the ground that there has not been the necessary 10 years’ adverse possession; see Objecting to the squatter’s application for the implications of such an objection.), the squatter will be registered as proprietor in place of the registered proprietor of the land
  • if the application is opposed, it will be rejected unless either
    • it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the squatter ought in the circumstances to be registered as proprietor
    • the squatter is for some other reason entitled to be registered as proprietor
    • 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, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.
  • in the event that the application is rejected but the squatter remains in adverse possession for a further 2 years, they will then be able, subject to certain exceptions, to reapply to be registered as proprietor and this time will be so registered whether or not anyone opposes the application.

2. Adverse possession: the essentials

Adverse possession requires factual possession of the land, with the necessary intention to possess and without the owner’s consent.

You must show:

  • that the squatter and any predecessors through whom they claim have been in adverse possession for at least 10 years (or at least 60 years for Crown foreshore) ending on the date of the application (Schedule 6, paragraph 1(1) of the Land Registration Act 2002). ‘Foreshore’ here means “the shore and bed of the sea and of any tidal water, below the line of the medium high tide between the spring and neap tides” (Schedule 6, paragraph 13(3) of the Land Registration Act 2002). In this context ‘Crown’ includes the Duchy of Lancaster and the Duchy of Cornwall (Schedule 6, paragraph 13(1) of the Land Registration Act 2002)
  • or that the squatter has been evicted by the registered proprietor, or a person claiming under the registered proprietor, not more than 6 months before the date of the application, that this eviction was not pursuant to a judgment for possession, and that on the day before the eviction they and any predecessors through whom they claim had been in adverse possession of the land for a period of 10 years ending on that date (Schedule 6, paragraph 1(2) of the Land Registration Act 2002)

Note that where adverse possession is claimed in respect of land owned by:

  • an overseas company (which includes a company registered in any of the Channel Islands or in the Isle of Man) which has been dissolved, or
  • a company registered under the Companies Acts (in other words, a company other than an overseas company) which has been dissolved and there has then been disclaimer by the Crown or Royal Duchy

so that escheat has taken place, any application based on adverse possession made under Schedule 6 will be rejected or cancelled; the registered estate to which the application relates will have determined.

If the registered proprietor is an overseas company, the applicant or their conveyancer must confirm that they believe the company not to have been dissolved and give an explanation of the basis on which that confirmation is given. The guidance on Overseas registries on GOV.UK may assist if the company is governed by the law of one of the countries or territories the site mentions.

Full details are available on the government website HERE

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