John Szepietowski advises on Adverse Possession claims

Prior to the enforcement of the Land Registration Act 2002, a squatter could acquire the right to be registered as proprietor of a registered estate if they had been in adverse possession of the land for a minimum of 12 years. However, the doctrine of adverse possession did not fit easily with the concept of indefeasibility of title that underlies the system of land registration. Nor could it be justified by the uncertainties as to ownership which can arise where land is unregistered; the legal estate is bested in the registered proprietor and they are identified in the register.

The Position prior to The Land Registration Act 2002

The case of Buckinghamshire cc v Moran [1990] highlighted the requirements to be met to establish a successful claim of adverse possession. These requirements have been confirmed in the case of JA Pye (Oxford) Ltd. And others v Graham and Another [2002]. The requirements are as follows:

1. The legal owner must have vacated the land, allowing the squatter to use the land, acting as he/she were the legal owner of the land.
2. The possession of land must occur without the consent of the legal registered owner. Lord Justice Slade in Buckinghamshire County Council v Moran [1990] declared that “possession is never ‘adverse’ within the meeting of the 1980 Act if it is enjoyed under a lawful title”.
3. There must be factual possession present. In Powell v McFarlane [1977], Lord Justice Slade stated that “factual possession signifies an appropriate degree of physical control. It must be a single and exclusive possession, though there can be a single possession exercised on behalf of several persons jointly. Thus, an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time”.
4. There must be open possession and thus, possession must not be deliberately concealed.
5. There must be an intention to possess the land. Justice Hoffman stated in Buckinghamshire County Council v Moran [1988] that there need not be an “intention to own or even an intention to acquire ownership, but an intention to possess”.

The Limitation Act 1980 declared that a squatter could claim adverse possession on a piece of unregistered land if the squatter satisfies all the above and has been there for 12 years. Before the expiry of the 12-year period, the legal registered owner can evict the squatter. However, after the expiration of this 12-year period, the squatter can claim for being the title owner of the land.

The Land Registration Act 2002

The Land Registration Act 2002 has created a new regime that applies only to registered land. This new regime is set out in Schedule 6 of the Act. This makes it more likely that a registered proprietor will be able to prevent an application for adverse possession of their land being completed.

The Key changes:

1. Adverse Possession of registered land for 12 years of itself will no longer affect the registered proprietor title (section 96 Land Registration Act).
2. After 10 years’ adverse possession, the squatter will be entitled to apply to be registered as the proprietor in place of the registered proprietor of the land.
3. After an application has been submitted by the squatter to the Land Registry, the registered proprietor will be notified and given the opportunity to oppose the application.
4. Similarly to the position before the Land Registration Act 2002 was enforced: the possession of land must occur without the consent of the legal registered owner, there must be factual possession present and there must be an intention to possess.
5. If the application is not opposed, the squatter will be registered as the proprietor in place of the registered proprietor.
6. If the application is opposed, it will be rejected unless one of the following applies: Firstly, it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the squatter ought in the circumstances to be the registered proprietor. Secondly, the squatter is for some other reason entitled to be registered as the proprietor. Lastly, the squatter has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it.
7. In the event that the application is rejected, but the squatter remains in adverse possession for a further two years, they will then be able, subject to certain exceptions, to reapply to be registered as the proprietor and this time will be registered whether or not anyone opposes the application.

Making an Adverse Possession Application

To make an Adverse Possession Application, the squatter must make the application on form ADV1 accompanied by a statement of truth or statutory declaration that meets the requirements set out in the Land Registry Rules 2003, rule 188(1)(a) and (2), namely, that it provides evidence of adverse possession for not less than 10 years and whether the application relates to part only of the land in the registered title or the full registered title.

It is important to list all the documents that accompanies the application on ADV1 and pay the appropriate fee under the Fee Order. If a statement of truth is used it may be in form ST1. Form ST1 is designed to provide a framework for the information that must be included within an ADV1 application relating to land. An affidavit may also accompany the Adverse Possession application, providing the squatter a chance to provide a necessary timeline and demonstrate why he/she deserves to be the registered proprietor of the land.

If you believe that you satisfy the above requirements and have been in sole possession of registered land for 10 years or unregistered land for 12 years, we can aid you in the process and assist you in drafting the Statutory declaration and assist you in preparing an affidavit. For further information, please contact John Szepietowski at Audley Chaucer Solicitors on 01372303444 or email us at admin@audleychaucer.com or visit our Linkedin page.