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What's Yours Could Be Mine - What You Should Know About Adverse Possession

View profile for Harvey Gibbs
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Perhaps surprisingly, a regular enquiry that I receive from clients concerns what is known as “adverse possession” of land. The public perception of this is that it is all about squatters who have seized possession of a building. However, most of the cases that I have dealt with are situations where, for example, a house owner (to whom I shall refer to as the “squatter”) has extended the size of their garden by moving the rear fence back in order to enclose what appears to be a piece of “no man’s land”. In other cases, the squatter may have been maintaining a piece of land which abuts their property and so has come to regard it as their own. Only in a few cases will the squatter have taken occupation of a building. In most of these scenarios the squatter consider that they have become the owner of the land or building in question, but the problem is that they do not have any legal title it.

Unfortunately, in many of these cases no formal action is taken to regularise the title until a sale of the property is arranged, and the buyer notices that the title plan of the property does not accord with the site! Sometimes the area of land in question may be relatively small so the fact that there is no title is of little, if any, concern to the buyer or their mortgage lender, as it does not affect the valuation of the property. In such cases the squatter can make a statement of truth, detailing their occupation of the land, and pass it to the buyer on completion. However, in other cases the area may be significant with the result being that the buyer, and/or their mortgage lender, refuses to complete the purchase of the property unless the squatter gains title to the land. As you can imagine this causes considerable delay with the sale as an application to the Land Registry may take at least a few weeks to complete, depending upon the complexity. Furthermore, a buyer may not be prepared to wait for this be done meaning that the sale could even fall through.

It therefore makes total sense to act well ahead of a proposed sale of the property in order to avoid the complications, associated delays and additional stress when a sale is arranged. In some cases though the “squatter” may not be aware that part of their land is not actually within their legal title, particularly if they have owned it for many years, and so it is always worth asking a conveyancer to review the title ahead of placing the property on the market.

In order to regularise the title an application will have to be made to the Land Registry for the registration of the title based on the adverse possession. The procedure to be adopted depends upon whether or not the property in question is already registered at the Land Registry. If the property is not registered, then the squatter’s case is more straightforward in that providing the conditions have been satisfied the Land Registry will generally accept the application without the requirement to serve notice on the legal owner. The squatter will have to prove that, with the intention of taking possession, they have occupied the property for 12 years (or 30 years if the property is owned by the Crown or a Government Department), that throughout that time they have had factual possession of it (EG it has been entirely fenced so that no third party can gain access to it) and that the possession has always been without the true owner’s consent. In most cases all of this can be proved by a statement of truth of the facts by the squatter.

If however the property is registered then the procedure is rather different. Although only 10 years occupation has to be shown, the registered owner of the property will be notified by the Land Registry of the application and if they object then, except in very limited circumstances, the application will be rejected. However, if the squatter then remains in occupation for a further 2 years, and the registered owner does nothing about it, then the squatter can re-apply and this time the application will be successful even if the registered owner again opposes it, save in very limited circumstances.

Occasionally the roles are reversed, and I am consulted by landowners whom are concerned that a third party, such as a neighbour, may have intentionally or otherwise taken occupation of an area of land which the landowner believes is theirs and which they do not wish to lose.

So what can be done to protect yourself if you are a landowner? If your property is not registered at the Land Registry, then you should seriously consider making a voluntary application for registration of your title. This is something that the Land Registry encourages, and even offers a reduced application fee! Although there will still be some cost, especially when you factor in the solicitor’s fees for arranging the application, this will in the grand scheme of things be negligible compared to the risk of losing some or all of your property. If your property is however already registered then you should make sure that your address for service of any notices from the Land Registry is up to date so that you will receive notice of any application which might be made by a squatter, and therefore will have the opportunity to object. You should also of course regularly inspect your property and take steps to lawfully evict anyone who has taken possession of all or any part of it without your consent.

For advice on adverse possession, please contact me on 02476 999399 or another member of the Feldon Dunsmore team.

Author: Harvey Gibbs

15 October 2020