Applications for Adverse Possession

by Kerrie Culverwell, Senior Property Solicitor

Following from Helen’s article concerning encroachments onto Council Owned Land. I thought it would be helpful to discuss adverse possession – which Helen notes as being a potential consequence of encroachments that are left unchallenged.

Often referred to as “squatters rights” adverse possession is the act of occupying another’s land without permission of the lawful owner. Worryingly for a landowner, if that occupation is not challenged for a period of time (usually 10-12 years) the occupier can make an application for adverse possession of the land, which, if successful will result in possessory title to the land being granted.

This principle is governed by the Limitation Act 1980 and the Land Registration Act 2002. The Land Registry sets out the following criteria for an adverse possession application: –

  • factual possession of the land
  • intention to possess the land
  • possession is without the owner’s consent

if all of the above are satisfied, for a period of 12 years, then an application for adverse possession can be made.

Taking each of the three above points in turn:-

Factual Possession was discussed in the case of In Powell v McFarlane (1977) 38 P & CR 452 which provided that factual possession signifies a degree of physical control. Possession must be exclusive, as the owner and the intruder cannot both be in possession of the land at the same time.

Fencing, that is enclosing the area to the exclusion of other people (including the owner) is strong evidence of factual possession.

Intention to Possess

Usually, factual possession will demonstrate intention. The intention does not need to be to own the land but to possess it. It is worth noting that where the land is used for access, it is unlikely to amount to adverse possession but more likely a prescriptive easement.

Without Consent

The possession of the land must be without the owner’s consent. If the land is used with the owner’s permission by way of a licence (whether formally made or not) there cannot be adverse possession.

If the above criteria are satisfied and sufficient evidence provided (set out in a statement of truth) to the Land Registry, a successful application will result in possessory title being granted.

It is also worth noting that possession by a predecessor can be included in the application. The applicant is not required to have personally been in adverse possession for the entire duration if they are the successor in possession.

If an application is successful and possessory title is granted, it is possible that after a further period of 12 years title can be upgraded to title absolute. Which is the highest class of title and means that the title cannot be claimed against.

The above points really illustrate why an encroachment of land should not be ignored, as there is a potential to lose title to the property.