Adverse Possession

What is adverse possession?

Under the law, if someone has been occupying land or property without the owner’s permission for either 10 or 12 years, depending on the circumstances, they may be able to claim legal ownership of that land through adverse possession.

They do not have to pay for the land, but they do need to meet several legal requirements.

Adverse possession is commonly referred to as “squatter’s rights”, although it may not look like squatting as you know it. Most often, adverse possession comes up when someone “land grabs” part of their neighbour’s garden or field without their knowledge.

Why is adverse possession important?

If someone successfully proves an adverse possession claim, they can strip the legal owner of their ownership rights and claim the property for themselves.

This may seem unfair. If a boundary fence is misplaced by a few feet, for example, the true owner may never have any idea that a piece of land belongs to them.

However, adverse possession laws are in place to prevent land from sitting unused and abandoned. It can also help reflect the actual usage of land on the ground.

Historically, an occupier had to be in adverse possession for 12 years before they could claim a legal interest in the occupied land. The Land Registration Act 2022 reduced the period to 10 years for registered land, but also introduced a new process to make it easier for the true landowner to dispute a claim.

How do I prove adverse possession?

It is not enough to simply occupy land belonging to someone else. To prove an adverse possession claim, a few key requirements must be met:

• Factual possession: The occupier must prove that they took a ‘significant degree’ of control over the property, for example, by fencing off the land and placing a lock on the gate.
• Intention to possess: The occupier you must prove that they intended to possess the property as their own. This can be shown through actions such as maintaining the property, paying utility bills on it, or using it for farming purposes.
• Without owner’s consent: The possession must be “adverse”, meaning it took place without the true owner’s permission. If any form of lease, agreement or consent exists between the owner and the occupier, an adverse possession claim cannot be made.
• 10 or 12 year time period: If the land is already registered at the Land Registry, the property must have been occupied per the above requirements for 10 years. If the land is unregistered, the relevant period is 12 years.

What’s the difference between adverse possession and a prescriptive easement?

An easement is the right to use land belonging to someone else for certain purposes, such as access or drainage. Prescriptive easements are created when someone uses someone else’s land without permission for at least 20 years. This is different from other types of easement, which are usually created by an express agreement between the parties.

While both adverse possession and prescriptive easements involve someone using someone else’s land without permission, they are fundamentally different in their requirements and outcome:

• With adverse possession, there is an intention to use the land exclusively and treat it as your own. If your claim is successful, you will become the legal owner of the land.
• With a prescriptive easement, there is only an intention to use the land for specific purposes. You never own the land over which the right exists.

How can I make an adverse possession claim?

The first and most important step is to speak to a specialist adverse possession lawyer. Adverse possession claims involve complex issues of legal procedure, evidence of possession, and potential challenges by the true landowner. A generalist conveyancer may not have the expertise or experience necessary to give your application the highest chance of success.

If your solicitor thinks that you have a claim, they will make an application to the Land Registry to register your rights. Briefly, the steps for making an adverse possession claim are:

1. Gather evidence: You will need to prove that you meet the technical legal requirements for adverse possession. Evidence might include photographs, utility bills, a plan of boundary features, invoices from contractors and other documents demonstrating your full period of occupation. Evidence will have to go back many years.
2. Make an application: The application to the Land Registry must explain why you meet the legal requirements for adverse possession and include your evidence.
3. Notify the landowner: The Land Registry will notify the true owner of your application, if the land is registered. The landowner then has two months to raise an objection to your claim. If they do not respond, you will be granted legal ownership of the land after 65 days.
4. Respond to an objection: If the claim is defended, you have several options: abandon the claim, argue your case at the First-tier Property Tribunal or in Court, or come to a private deal with the landowner such as a lease or purchase. Legal advice is highly recommended—if you lose, you may have to pay the landowner’s legal costs.

What happens if I receive notice of adverse possession on my land?

For registered land

Timing is very important in adverse possession cases. Landowners have just 65 days to respond to a notice of adverse possession from the Land Registry. You are at risk of losing your property if you do not act quickly enough in challenging the claim.

However, as long as you do object in time and with the right notice, in many cases the claim will be rejected.

There is one note of caution: if the squatter stays on your property for another two years, they are allowed to file a new adverse possession claim. Defending the claim is only part of the solution—you need to take steps to ensure the squatter leaves your land and stays off in the future. Our specialist property litigation team can help you with both issues.

Unregistered land

Where the property is unregistered, your ability to defeat the claim will depend on whether you have evidence to prove that a claim for adverse possession cannot be made out. Finding this evidence can be a heavy burden, especially as it may relate to events many years in the past. It is important to work with a team that knows what evidence is needed and how to obtain it.

This is one area where prevention is better than cure. We highly recommend that you take action as soon as you notice squatters on your land. We can help you obtain an injunction and repossession orders removing them from the property—effectively stopping the clock on an adverse possession claim.

Get expert advice on adverse possession

We offer genuine expertise from adverse possession specialists. Whatever side of the fence you are on, we can assess the viability of the claim and guide you towards the evidence that will support or defeat the application.

We regularly assist clients in obtaining injunctions and possession orders to remove squatters and trespassers, ensuring that your land remains under your control.

We also pursue adverse possession applications and can help you build a strong case for legal ownership of land that you have occupied for many years.

To speak with one of our expert property litigation solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811