Adverse possession is a process by which a person who is not the legal owner of a piece of land may become its legal owner if they have occupied it (i.e. possessed it) without the consent of the true owner (i.e. adversely) for a required period of time.
The rule might seem strange at first, and indeed it is, but a popular justification for it is that it encourages efficient land use. Claims for adverse possession most often arise in the context of boundaries, especially where they are uncertain. Interestingly, claims can also arise in instances where a squatter has lived in a residential property, despite the fact that it is a criminal offence to trespass by “living” in a residential property.
Whether you plan to make an application for adverse possession, or wish to prevent or defend such a claim, it is important to seek legal advice, and do so early.
The requirements to make a claim in adverse possession
Two elements must be satisfied in order to successfully establish adverse possession. A claimant must demonstrate continuous factual possession of land combined with an intention to possess it. These must be satisfied for a minimum period of time, depending on whether the land is registered or unregistered. Where land is registered, that period is 10 years. The period is 12 years where land is unregistered; or where the period of possession of registered land ended before the 13th October 2003.
Factual possession and intention to possess relate to the relationship between the squatter and the land. In order for factual possession to be satisfied, a squatter must demonstrate that they have exercised a sufficient degree of physical control over the land. This is context specific, relating to the nature and usual use of the land in question. A squatter must prove that they have dealt with the land as though they were its owner, and importantly, that they have done so exclusively. The intention to possess element requires a squatter to prove that it was their intention to possess the land in the squatter’s own name, and to the exclusion of others, throughout the period of possession. The requirement for intent is in practice inferred from the acts of factual possession on which the squatter relies.
If a squatter can demonstrate that they have been in factual possession with an intention to possess the land for the required time period, they may apply to be registered as owner of the land. Where the application is successful the squatter is granted a possessory title over the land in which they have occupied.
How to prevent a claim in adverse possession
The old saying, prevention is better than cure, definitely holds true with adverse possession.
It is important first to determine whether you are indeed the proprietor of the land in question. This will be obvious in most cases but in those instances where boundaries are unclear, HM Land Registry title plans should be obtained to show the general position of boundaries. If it is still unclear, it is important to look at any deeds for the land in question which may show the boundaries in more detail. Assuming you are the owner of the land in question, the following options could be considered to defeat a squatter’s claim to your land.
You may remember that the requirement of factual possession requires exclusive physical control of the land in question. Therefore, interrupting the squatter’s possession will defeat their claim. Ways in which a squatter’s possession can be interrupted include physically enclosing the land or frequently maintaining it. Removing any physical barriers erected on the land by the squatter may also suffice to interrupt possession, however you must be careful not to cause any damage to the barrier in doing so. Interestingly, caselaw shows that interruptions need only be for a short period of time – one hour!
You may also remember that for possession to be adverse, it must be without the consent of the owner. Granting express or implied permission to the squatter then, will prevent them from being able to bring a claim in adverse possession. It is advisable to evidence any permission given, for example by granting the squatter a licence to use the land.
Another option would be to issue possession proceedings against the squatter in order to remove them from your land. This option is not without its risks as an evicted squatter who had been in adverse possession of land for the required time period could still make a claim in adverse possession.
This blog was intended to provide some general information about the law on adverse possession. For more information, contact Farleys by telephone on 0845 287 0939 or by email through our online contact form.
