Adverse Posession

Wednesday 14 September 2016

Adverse possession is a principle of property law that applies to both residential and commercial property. It is the legal basis on which ‘squatters rights’ can be claimed for land that is occupied by somebody who is not the legal owner of the same.
In order to claim adverse possession of the land in question (the “Land”), the ‘squatter’ needs to be able to demonstrate the following:

1. Factual possession of the Land, to the exclusion of all others.

2. An intention to possess the Land (not simply an intention to own).

3. Possession of the Land without the owner’s consent.

Note that the remainder of this blog relates only to the principal of adverse possession as it applies to registered land.
The Process 
If the above three circumstances have existed for at least ten years, the squatter can make an application to the Land Registry for adverse possession of the Land. The Land Registry will serve notice of the application on the registered proprietor of the Land and, if no objection is made, the squatter will be become the new registered proprietor.
If the current registered proprietor of the Land does object to the squatter’s application for adverse possession, then the application will be rejected unless one of the following three exceptions apply:

1. It would be unconscionable not to register the squatter as the registered proprietor of the Land.

2. The squatter is entitled to be registered as the registered proprietor of the Land for some other reason.

3. The Land abuts the squatter’s own property and the exact demarcation of the boundary between the two plots of land is unclear. The Land must also have been registered at the Land Registry for more than one year.

If the squatter’s application is rejected by the Land Registry but the squatter remains in adverse possession for a further two years, then s/he can make a further application to the Land Registry and presuming the application and the facts surrounding the same are in order, the squatter will be become the new registered proprietor of the Land.
Practical Application 
If when purchasing a property there is a question about ownership and the principle of adverse possession may come into play, it is important to bear the following in mind:

1. Ask your solicitor to do an index map search of the Land so as to confirm the identity of the registered proprietor.

2. Refer the issue to both your agent and (if applicable) your lender’s valuer and ask them to consider whether the issue of adverse possession affects the value of the property.

3. If the seller has been a squatter for at least ten years ask him/her to make an application to the Land Registry for adverse possession. This may delay your purchase a little, but it will always be tidier if the seller is the registered proprietor of all of the property that you are purchasing.

4. If the seller has been a squatter for either less than ten years or for ten years but their application to the Land Registry is rejected, ask them to provide you with a sworn statutory declaration detailing the full circumstance of the adverse possession. The statutory declaration should refer to a plan and, where possible, photographs of the Land. The statutory declaration can then be used by you to support any future application for adverse possession of the Land.

5. If the seller does not make an application for adverse possession, consider taking out insurance against the risk of the registered proprietor reclaiming possession of the Land. It is important to remember that if any approach is made to the seller or the Land Registry with regards the adverse possession then the insurance policy will become void.