Can I still claim adverse possession?

9 Nov 2021 | Shilpa Mathuradas

The principle of “adverse possession” commonly known as “squatters rights” is a principle which allows a person who does not have legal title to become the owner of land by being possession of it for a period of time, usually 12 years.

So if a squatter could evidence the fact that they have been in control of the land for 12 years to the exclusion of the legal owners then the legal owner will be statute barred from recovering possession of that land. This continues to be the case for unregistered land and registered land where the period relied upon is for a period of at least 12 years ending before 13th October 2013. However, for registered land there is a different regime laid out in the Land Registration Act 2002 which makes it more difficult for a squatter to obtain adverse possession of registered land.

Regardless of whether a claim for adverse possession is for registered or unregistered land, the elements to be proved remain the same:

  • Uninterrupted factual possession of the land by the claim for the relevant period
  • Intention on the part of the claimant to possess the land during the period of possession.

These elements will involve the squatter showing:

  • Factual Possession

The squatter will need to show factual possession for the requisite period ie 10 years for registered land and 12 years for unregistered land.

The most common way a squatter may acquire land is by taking possession of land which has been abandoned by the legal owner.

  • Physical Control

There must be a sufficient degree of exclusive physical control over the land so the squatter will need to show that they have been dealing with the land in a way that an occupying owner would have been expected to deal with the land and there must be no one else who has exercised the same physical control.

  • Intention to Possess

The squatter must show that they intended to possess the land during its period of possession. The intention must be to possess in the squatter’s own name, on its own behalf and to the exclusion of all other including the legal owner.

As I have explained above, even if the above elements are shown, it is almost impossible to obtain title by adverse possession of registered land against the will of the true owner but there are three exceptions to this rule. The process under the Land Registration Act 2002 allows the paper owner to oppose the squatter’s application and the squatter’s application will fail unless it can meet the conditions set out in paragraph 5 of schedule 6 to the Act as follows:

  • Estoppel

The squatter has to show it would be unconscionable because of equity for the squatter to be dispossessed and the circumstances are such that the squatter ought to be registered as the proprietor.

  • The squatter has some other right to land

The squatter has to show that he is entitled to the land based on some reason other than having been in adverse possession for 10 years

  • Reasonable mistake as to boundaries

This ground is the most widely used ground by squatters.  It recognises that boundaries on the ground do not always coincide with the boundaries as shown on the registered title and as the register is not always conclusive as to boundaries, there is a case for allowing a squatter to acquire title in certain circumstances where the squatter has acted in good faith.

However,  many a squatter has relied on this ground to claim plots of neighbouring land which are not even in the vicinity of the boundary. A recent case of Dowse v City of Bradford Metropolitan District Council (2020) has however tightened the interpretation of this exception which is much narrower than previously thought. The case held that the whole of the disputed land would have to be described as “adjacent to” the applicant’s land for the condition to be satisfied.

So whereas adverse possession is still very much a legal principle which can allow a squatter to become a legal owner of land by being in possession of it for a period of time, in the case of registered land, it has become extremely difficult to successfully rely on this principle.

If you would like to speak to a property litigation lawyer, please call Shilpa Mathuradas, or alternatively, complete an online enquiry form.

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