Protecting Land from Adverse Possession
by Helen Lisney, Legal Officer
Adverse possession is a claim for ownership of land based on factual possession of the land for a period of time (12 years in respect of unregistered land, and 10 years in respect of registered land).
Anyone who has been in possession of land for the requisite period can apply to the Land Registry to be registered in their ownership. To make an application they will need to show the following:-
– Factual possession of the land – The applicant must have been in the applicant’s factual possession for the requisite period. There is no requirement that the adverse possession should be apparent to anyone inspecting the land.
– Physical control – there must be a sufficient degree of exclusive physical control over the land e.g fencing the land, carrying out works, changing locks and keeping of livestock.
– Intention to possess – the applicant must show that they intended to possess the land during the period of occupation to the exclusion of all others including the owner).
Local authorities and other organisations often own areas of land that are unoccupied and unused by the owner, such as fields or open space areas, and these can be affected by adverse possession in a number of ways.
It is by no means uncommon for land owners whose properties adjoin open space land, to incorporate part of that open space within their boundaries to extend their gardens.
It is also known that if a field is left unsupervised, someone may start to use that field to keep livestock.
In order to protect land holdings from adverse possession it is important to carry out regular checks on land, taking care to ensure that the boundary features have not been moved, any locks have not been changed etc. It would be advisable to take photographs of the land and boundaries at regular periods so it will be possible to establish a timeline for any unlawful occupation.
If an area of land has been taken by someone else action should be taken to reclaim the land, probably by way of possession action in the County Court, or an injunction requiring the relocation of an incorrect boundary.
Sometimes, a landowner may be happy for the occupier to be in occupation, but if this is the case, it is important to regularise the situation by granting permission by way of licence, or some sort of tenancy – If an occupier has the landowner’s specific consent to occupy the land then he cannot claim adverse possession. Any such licence or tenancy should be reviewed on a regular basis, and the permission should be communicated to the occupier.