Adverse Possession of Land and Property by Ford Banks Irwin Solicitors - The Property Lawyers in Manchester
Please note: Not to be used or relied upon without legal advice. These notes are for illustrative purposes ONLYAdverse Possession of Land and Property
The Land Registration Act 2002 Schedule 6 makes it more likely that Solicitors or Conveyancers for a registered Proprietor will be able to prevent an application for adverse possession of the Property being completed. In summary:
*Adverse possession of registered Property for 12 years of itself will no longer affect the registered proprietor's title.
*After 10 years' adverse possession, the squatter will be entitled to apply to be registered as proprietor in place of the registered proprietor of the Property
*On such an application being made the registered proprietor (and certain other persons interested in the Property) will be notified and given the opportunity to oppose the application
*If the application is not opposed, the squatter will be registered as proprietor in place of the registered proprietor of the Property
*If the application is opposed, it will be rejected unless either
-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 registered as proprietor
-the squatter is for some other reason entitled to be registered as proprietor, or
-the squatter has been in adverse possession of Property adjacent to their own under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent Property has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application
*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 exception, to re-apply to be registered as proprietor and this time will be so registered whether or not anyone opposes the application.
It is therefore important to instruct Property Litigation Solicitors and Lawyers to take steps to evict squatters as soon as you become aware of them.
Transitional Provisions:
There are transitional provisions in the Land Registration Act 2002 covering cases where a squatter was in adverse possession of registered Property for the requisite limitation period under the Limitation Act 1980 so as to have acquired the right to be registered as proprietor before October 2003. This will usually have happed if the squatter was in adverse possession for at least 12 years before October 2003, though sometimes a longer period will be necessary. The transitional provisions preserve this right to be registered as proprietor, although the right can be lost.
A squatter may be able to apply under either the transitional provisions or the new regime. If they make applications both under the new procedure and under the transitional provisions, the Land Registry will ask for confirmation as to which application should proceed first.
Adverse Possession - the essentials
Adverse possession requires the factual possession of the Property, with the necessary intention to possess and without the owner's consent.
The Solicitor or Conveyancer must show:
*that the squatter and any predecessors through whom they claim have been in adverse possession for at least 10 years ending on the date of the application
*that the squatter has been evicted by the registered proprietor, or a person claiming under the registered proprietor, not more than six months before the date of the application, that this eviction was not pursuant to a judgment for possession, and that on the day before the eviction they and any predecessors through whom they claim had been in adverse possession of the Property for a period of 10 years ending on that date.
Factual Possession: In Powell -v- McFarlane, Slade J said:
"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. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed . . . Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so"
Where the Property was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.
The intention to possess: What is required is "not an intention to own or even an intention to acquire ownership but an intention to possess". This means "the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow"
Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the acts making up that factual possession. But this deduction will not always be made, as Slade J explained in Powell -v- MaFarlane:
"In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner".
Use of the land for access purposes is an example of an equivocal act. Such use over time might give rise to an easement by prescription but is not, by itself sufficient to establish an intention to possess the land.
Possession without the owner's consent: In Buckingham County Council -v- Moran, Slade LJ explained:
"Possession is never adverse within the meaning of the 1980 Act if it is enjoyed under a lawful title. If therefore a person occupiers or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in 'adverse possession' as against the owner of the paper title".
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
continued on Adverse Possession of Property page 2 . . .
For any further information please contact Ford Banks Irwin Solicitors.