Land is a vital commodity. So much so that a whole branch of the law has grown up around the subject and it even has its own central registry. It is nonetheless possible for land to be “lost”. A strip of land might be mistakenly left over after the sale of several plots with the owner not realising he has not disposed of it or a land owner might without his descendants (if he has any) knowing that he owned a particular piece of land. It was long since decided that land is too valuable to be allowed to go to waste and so the doctrine of adverse possession grew up to combat the risk.

Adverse possession is the term used to describe a claim to ownership of land arising not from a deed in favour of the claimant but from actual occupation of the land. Obviously it would not be fair or practical to allow a person to claim ownership merely by entering onto the land and so strict rules have developed in an attempt to balance the interests of land owners with the interests of the general public.

Relevant Law on Adverse Possession

The law in England & Wales comes from two main sources, statute (Acts of Parliament) and case law (rules arising out of previously decided cases). Claims for adverse possession can touch on many areas of law depending on the individual circumstances however the following are usually most relevant:

• the Limitation Act 1980;
• schedule 6 to the Land Registration Act 2002;
• Powell v McFarlane [1977]
• J A Pye (Oxford) Limited v Graham [2002] and;
• Buckinghamshire County Council v Moran [1988]

Essentials of an Adverse Possession Claim

In order to make a successful claim for adverse possession the claimant must satisfy certain requirements. He must:

• have been in factual possession of the land for the requisite limitation period (see below);
• have the necessary intention to possess and;
• been in possession without the paper title owner’s consent (and been so for the requisite limitation period)

The Limitation Period

There are two regimes under which a claim for adverse possession may be made, depending on whether or not the land is registered and if so, when the squatter’s right possession arose. The period of occupation which must pass before a claim can be considered depends on which regime the application is made under.

Where the land is unregistered, ss15 and 17 of the Limitation Act 1980 apply. S15 states that a person’s right to take action to recover land from another will expire if not exercised within 12 years and s17 states that the paper title owner’s title will be extinguished after 12 years. Together these two sections have the effect that should a person occupy a piece of unregistered land which he does not own for 12 years or more then subject to the above bullet points the true owner will not be able to evict him and will no longer have any title to the land.

If the land is registered with Land Registry then s17 of the Limitation Act does not apply therefore the owner’s title is not extinguished after 12 years. Instead, Schedule 6 of the Land Registration Act 2002 applies to claims for adverse possession of registered land. Under Schedule 6, a claim can be made after 10 years’ of occupation though the registered proprietor will be notified and can usually defeat the claim by objecting.

There is an exception for registered land, where the right to claim possession arose prior to the commencement of the Land Registration Act 2002 (on 13 October 2003). In this case, the claimant can claim under either the old or the new regime.

Creating a Chain of Squatters

It is possible for a squatter to make a claim after less than 12 years’ occupation where he takes his “title” from a previous squatter. For example, if a squatter occupies land and then hands that land over to another squatter, the two periods of occupation can be added together. This might happen where a person has incorporated some land he does not own into his garden say, and then sells the main property and the additional land.

Limitation Period – Special Circumstances

Although the period of occupation is usually 12 years (or 10 for registered land) there are circumstances in which a longer period is needed. Those periods are as follows:

• crown land – 30 years
• crown foreshore – 60 years
• land belonging to a dissolved company (because a dissolved company’s assets belong to the Crown as bona vacantia)
• bishops, vicars and certain other officers of the Church of England (known as spiritual corporations sole)

In addition, where the owner of the land is of unsound mind or a minor the limitation period may be suspended, as it may be where the cause of action has been deliberately concealed or where it arises from a mistake.

Meaning of Factual Possession

In order to claim ownership of land by adverse possession the squatter must be in “factual possession” for the entire limitation period. As to what qualifies as factual possession, the following statement, from the case of Powell v McFarlane [1977], is considered the authority:

“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so”.

This statement was confirmed by the House of Lords (the highest Court in the United Kingdom, now known as the Supreme Court) in J A Pye (Oxford) Limited v Graham [2002].

What this means is that the squatter’s possession must be exclusive – a person occupying land alongside the registered proprietor cannot claim adverse possession against him. A landlord or freeholder of land is for these purposes “in possession” therefore a tenant cannot claim adverse possession against a landlord (unless the lease or tenancy can be shown to have come to an end and the claimant has remained in possession afterwards for the limitation period.

Also, the possessor must exercise “physical control”. What qualifies as physical control depends on the circumstances however it must go beyond simply using land for example for access or for grazing of animals. It will usually mean fencing the land off or if the land has a building on it, changing the locks.

The Necessary Intention to Possess

As well as being in factual possession for the limitation period, the squatter must have the necessary intention to possess. The following statements are relevant:

“not an intention to own or even an intention to acquire ownership but an intention to possess.” – Buckinghamshire County Council v Moran [1988], “This means the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow” – Powell v McFarlane [1977] and “In my judgement it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner” – Powell v McFarlane [1977].

What does this mean? Usually, the circumstances surrounding the act of being in factual possession will be enough to show the necessary intention but this should not be assumed, for example where there is some other plausible explanation for the factual possession. If this is the case, the squatter will need to prove the necessary intention. This could be done by pointing to actions such as spending money on improving the land (building a house on it for example). Conversely, where it would have, on the face of it, been appropriate to spend money on the land, say to effect repairs, and money wasn’t spent this could indicate that the squatter did not consider the land his responsibility and he did not therefore have the necessary intention to possess.

Possession Without the Paper Title Owner’s Consent

“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.” – Buckinghamshire County Council v Moran [1988].

In other words, a tenant under a lease or even a person who is on the land with the land owner’s permission cannot claim adverse possession. If for example a neighbour expressly consents to the use of part of his garden by another neighbour but does not agree to give the land to that neighbour (in other words the neighbour occupies the land under licence) then adverse possession cannot be claimed.

In some circumstances however, where the property was originally occupied under a lease or licence but it can be shown that lease or licence has come to an end, adverse possession may be claimed but time will only start to run from the time the lease or licence ends. For example, where land leased but the tenant stops paying rent and the landlord does not take enforcement action, time may start to run from the time the tenant stops paying rent.

Application for Registration Based on Adverse Possession

Whenever land is transferred from one party to another, or is mortgaged, for the change of ownership or mortgage to have legal effect it needs to be registered with the Land Registry. Due to the uncertain nature of a claim for adverse possession however, before the squatter sells or mortgages the land the buyer (or lender) will usually insist that the squatter’s title is registered with Land Registry first. Otherwise the purchaser or lender risks that the claim will fail and he will receive nothing for his money.

Although in many aspects the process of applying for registration is similar whether the land is currently unregistered or whether it is registered, there are some important differences therefore for ease of reading the two approaches are dealt with separately below.

Unregistered Land

For land that is currently unregistered, the application form to use is form FR1 (First Registration 1). It will need to be submitted to the Land Registry by the applicant together with the appropriate fee, a plan showing the extent of the land being claimed and supporting evidence of the claimant’s right to possession. This evidence must show:

• 12 years’ uninterrupted factual possession;
• the necessary intention of the applicant to possess and;
• that the claimant’s occupation was without the paper title holder’s consent

The evidence requirement is usually dealt with by way of a statutory declaration or statement of truth. A statutory declaration is a statement as to certain facts signed (sworn) in the presence of a solicitor. To make a statutory declaration which you know to be false is a criminal offence. A statement of truth is basically a statutory declaration that is not sworn. A deliberately false statement would still be fraud.

Statement of Truth

The statement should explain the facts of the claimant’s occupation of the land claimed. It should include the date on which occupation commenced, detail any breaks in the claimant’s occupation and an explanation of them. It should explain how the claimant came to occupy the land and what steps he has taken to demonstrate to the world at large that he considers the land to be his own (erecting fences, carrying out improvements, changing the locks to any buildings on the land etc.).

The statement should be made by the claimant, though supporting statements from others with knowledge of the occupation, such as a co-occupier who is not joining in the application or a neighbour, may assist with the claim.

The Land Registry produces a form, ST1, which is a template statement of truth. It does not have to be used but doing so helps to ensure that all of the necessary information is supplied. The Land Registry will reject as defective any application which does not meet the minimum requirements, i.e. that the land must be clearly identifiable (which almost always requires a plan) and that 12 years’ occupation must be shown. It is advisable to seek the advice of a solicitor before making the application.

Land Registry Inspection

On receipt of the application, the Land Registry will usually inspect the land to check certain points from the statutory declaration or statement of truth and to verify that the plan supplied adequately reflects the position on the ground.

Notices and Objections

Once it is satisfied that the application is in order it will serve notice on anyone who it knows to have an interest in the land (for example anyone with the benefit of a caution against first registration or a charge holder whose interest is protected by an entry in the Land Charges register) or who it suspects, from its local knowledge, might have an interest. If no objections are received and if it is otherwise satisfied, the application will then be completed.

If any interested party wishes to object to the application then he or his conveyancer must put the objection in writing stating the reasons for the objection. Upon receipt of an objection, the registrar must first decide whether the objection has any grounds. If he decides that it is in fact groundless he may disregard it. Otherwise, he cannot complete the application for registration until the objection is dealt with.

Where an objection cannot be disregarded the registrar will first ask all parties whether they wish to negotiate directly to find a solution. If they agree then they will be given time to do so however should it become apparent that a negotiated settlement will not be reached the registrar must refer the matter to the Land Registry Adjudicator. The Adjudicator has similar powers to the Court and will either determine the application (whether by completing or rejecting it) or direct one of the parties to commence legal proceedings so that the Courts can decide the case.

Registered Land

Where the land is already registered at the Land Registry, the application form to be used is form ADV1. This form must be accompanied by appropriate evidence to support the claim, a cheque for the appropriate fee and if only part of the registered title is being claimed, a plan identifying that part. The supporting evidence must show:

• 10 years’ uninterrupted adverse possession;
• the necessary intention to possess;
• that the possession was without the consent of the proprietor;
• that to the best of the claimant’s knowledge there are no current possession proceedings against him and there has been no order for possession in the last 2 years;
• that to the best of the claimant’s knowledge the title is not and has not at any time during the period of adverse possession been, subject to a trust (other than a trust where the interest of each of the beneficiaries is/was an interest possession)

The evidence requirement is usually dealt with by way of a statutory declaration or statement of truth. A statutory declaration is a statement as to certain facts signed (sworn) in the presence of a solicitor. To make a statutory declaration which you know to be false is a criminal offence. A statement of truth is basically a statutory declaration that is not sworn. A deliberately false statement would still be fraud.

Statement of Truth

The statement should explain the facts of the claimant’s occupation of the land claimed. It should include the date on which occupation commenced, detail any breaks in the claimant’s occupation and an explanation of them. It should explain how the claimant came to occupy the land and what steps he has taken to demonstrate to the world at large that he considers the land to be his own (erecting fences, carrying out improvements, changing the locks to any buildings on the land etc.).

The statement should be made by the claimant, though supporting statements from others with knowledge of the occupation, such as a co-occupier who is not joining in the application or a neighbour, may assist with the claim.

The Land Registry produces a form, ST1, which is a template statement of truth. It does not have to be used but doing so helps to ensure that all of the necessary information is supplied.

The Land Registry will reject as defective any application which does not meet the minimum requirements. It is advisable to seek the advice of a solicitor before making the application.

Intention to Rely on Paragraph 5, Schedule 6 LRA 2002

In addition to the above, it is necessary at this stage for the applicant to indicate whether he intends to rely of the three conditions contained in paragraph 5, Schedule 6 of the Land Registration Act 2002 in the event that a counter notice is served by the registered proprietor or other interested party. Once the application is submitted the applicant cannot change his mind on this point. This will be explained in more detail later in this article.

Land Registry Inspection

On receipt of the application, the Land Registry will usually inspect the land to check certain points from the statutory declaration or statement of truth and to verify that the plan supplied adequately reflects the position on the ground.

Notices and Objections and Counter Notices

Once the Land Registry is satisfied that the applicant is entitled to apply, it will serve notice of the application on the registered proprietor and on anyone else with an interest in the property, such as a registered charge holder or the beneficiary under a notice. Any recipient of a notice will then have 65 days in which to respond. He may either:

• consent;
• object;
• serve a counter notice or;
• object and serve a counter notice

If all of the recipients of a notice consent; then the application can simply be completed. If a person objects, he must demonstrate that the claimant does not in fact have a valid claim, i.e. by showing that he has not been in possession for the requisite period, he did not have the necessary intention to possess or that the possession was in fact under a lease or licence or other form of consent. Upon receipt of an objection, unless the registrar deems it to be groundless, he will give both parties the opportunity to settle the dispute through negotiation. If this fails or if either or both are not prepared to negotiate he will refer the matter to the Land Registry Adjudicator. The Adjudicator will then either schedule a hearing or direct one of the parties to commence legal proceedings. The application for registration cannot be completed until the dispute is settled.

If a counter notice is served this must be done using form NAP, which the Land Registry will supply along with the 65 day notice. A counter notice can be served as well as or instead of an objection. It can also be served after an objection is made as long as it is within the 65 day period. The effect of serving a counter notice is to require the Land Registry to deal with the claimant’s application under paragraph 5 of Schedule 6 of the LRA 2002. This paragraph states that the application must be rejected unless one of the following three conditions are satisfied:

• 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, 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, 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.

If, in his application, the claimant has not indicated an intention to rely on any of the above conditions then the application will be rejected on receipt of a counter notice. If he has, then the Land Registry will at this part consider whether he has put forward an arguable case. If they consider that he has not they will reject the application. This demonstrates the need to get the application right and is why a claimant would be well advised to seek legal advice before applying.

If an arguable case is shown the matter will be referred back to the person who served the counter notice. That person can then either acquiesce or object. If he objects (on the basis that he does not accept that the condition being relied upon has been satisfied) then the parties will be asked if they want to negotiate directly. If they do not, or if the negotiations fail, the Land Registry will refer the matter to the Adjudicator.

Some explanation of the three conditions is required:

• 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

An equity by estoppel arises where the claimant, in reliance on a mistaken belief that he owns the land in question, where this belief is encouraged or at least allowed by the true owner, acts to his detriment with the owner’s knowledge and acquiescence and as a result it would be fundamentally unfair to deny the claimant the title he believed he had. This might happen where for example the owner verbally agrees to sell the land to the claimant, the purchase money is paid but title to the land is never transferred. Contracts for the sale of land must be in writing to be valid therefore the claimant has not contractual right to insist that the owner transfers it but clearly in would be inequitable to allow the owner to keep both the land and the purchase money.

• the squatter is for some other reason entitled to be registered as proprietor

Such an entitlement might arise where the owner has formally contracted to sell the land to the claimant and the contract is valid but the legal title has never been transferred. Here the owner holds the legal title on trust for the claimant.

• 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.

This will typically occur where the boundary wall or fence between two properties has been erected in the wrong place.

Further Application Where First Application is Rejected

Even where the application is ultimately rejected, all is not necessarily lost for the claimant squatter. This is because, if he remains in possession for a further 2 years, he may make a further application. Therefore the owner has effectively 2 years in which to issue proceedings for possession against the squatter (which he is entitled to do once the application is rejected).

A further application can only be made where the original application was rejected for failure to satisfy one of the three conditions contained in paragraph 5 of Schedule 6 of LRA 2002, i.e. not where it was rejected as a result of the claimant’s failure to show an entitlement to apply for adverse possession (for example because he has not shown 10 years factual possession).

The application is to be made using form ADV1 and must include a statement of truth or statutory declaration showing at least 2 years’ adverse possession since the rejection of the original application as well as confirming that there has been no judgement for possession against the squatter in the last 2 years, there are no current proceedings in which the claimant is a defendant and the squatter has not been evicted.

The application must contain full details of the original application and a further fee will be payable.

On receipt of the application the Land Registry will serve notice on the registered proprietor and any interested parties allowing them 15 working days to either consent or object. It is not possible to serve a counter notice at this point requiring the Land Registry to look again at paragraph 5 of Schedule 6 of LRA 2002. The objection must be on the basis that the objector does not believe the squatter has remained in adverse possession for the last 2 years or that in fact, possession proceedings have been issued. As with other objections, if they cannot be resolved by negotiation they will be referred to the Adjudicator for adjudication or for direction to the Courts.

If no objection is received, or if the objection is successfully disposed of, the claimant will be registered as proprietor.

Case Law

There have been a great number of cases on the issue of adverse possession and although the Land Registry will consider these, it is unlikely that the circumstances of two cases will ever be identical and it must consider each case on its own merits.

Highway Land

It is not possible to claim adverse possession of land which forms part of a public highway and any application which relates, in whole or part, to highway land will be rejected. It is therefore necessary where there is a possibility that the land may be a highway to make enquiries of the highway authority.

Class of Title and Charges

There are three classes of freehold title which the Land Registry might award – absolute, qualified and possessory. Absolute title cannot be challenged. The effect of possessory title is that it may be subject to various third party interests which are not noted on the title. Since an adverse possessor will not of course be able to deduce the paper to title to the Land Registry in the usual way, they will almost always award possessory title only. This can be upgraded in future to absolute title.

The general rule is that an adverse possessor will take the property free of any charges not protected by a notice in the register. This means that any mortgages where the paper title owner is the debtor will be removed from the title. There is an exception however, where the squatter’s application was decided by reference to paragraph 5 of Schedule 6 of the LRA 2002. In this case the charge will remain but if the charge does not relate solely to the land claimed by the squatter (for example because the squatter’s claim related to only part of the land in the paper owner’s title) then the squatter can require the lender to apportion the debt and upon payment by the squatter of the apportioned sum, can require the charge to be removed.

Where a charge remains on the squatter’s title the squatter does not become responsible for the repayments because these are due under the terms of a mortgage contract between lender and borrower which is not capable of binding third parties but any power of sale which accrues to the lender can be exercised against the squatter’s land.

Costs of a Failed Application

Before commencing an application the claimant must consider that, should it fail, it is possible that he could be ordered to pay any costs incurred by the owner, particularly where the case is ultimately decided in the Courts. This should be taken into account before an application is made where the strength of the case is questionable. Also of course, making the application has the effect of putting the owner on notice of the adverse possession and giving him the option of taking action.