An insight to Adverse Possession  

Wednesday 23 February 2022

Acquiring land by adverse possession is the legal basis by which “squatters’ rights” can be claimed for land occupied by somebody who is not the legal owner. The principle applies not only to residential but also to commercial property.

In order to claim adverse possession, a claimant will need to prove the following:

• Uninterrupted factual possession of the land for the requisite period;
• Intention to possess the land (not just simply to own) during the period; and
• Possession is without the title owner’s consent, without force or without security.

Factual possession:

The land must have been in the claimant’s factual possession for at least 10 years for registered land and 12 years for unregistered land.

The claimant will usually acquire possession by dispossessing the legal owner however, there are certain rarer circumstances where possession can be acquired by taking possession of the land that has been abandoned by the owner.

The claimant must also have a sufficient degree of exclusive control over the land. How sufficient this is will depend on the circumstances such as the nature of the land.

Intention to possess:

The claimant must establish that they intend to possess the land during the period of possession.

An intention to possess is often clear from the facts. The claimant may, for example, erect a fence to enclose the land or cut the grass which can be evidence of intention to possess.

The process:

Provided the requirements above are satisfied and the land is registered, the claimant can then make an application to the Land Registry who will serve notice on the registered proprietor.

If the proprietor makes no objection, the claimant will become the new registered proprietor.

The new proprietor will be granted a “Possessory title” rather than the usual “Absolute title”. Possessory title is open to challenge however after a further period of 12 years, an application can be made to upgrade to absolute title.

If the current proprietor does object, the application will be rejected unless one of the prescribed exceptions apply. The claimant can make a further application in two years provided the required criteria still remain.

If there is a question about ownership when purchasing a property it is important to check:

1. Whether the seller is the registered proprietor of the property on the title register
2. Whether the title is “Absolute” or “Possessory”
3. If the seller has been in possession for at least 10 years
4. Whether there are currently any claims for adverse possession of the land

If you require any advice or assistance please email or call our Commercial Property team today on 0113 207 0000.