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 ONLYcontinued from page 3 (Adverse Possession of Land and Property) . . .
Adverse Possession of Land and Property
Application to be registered as a person to be notified of a squatter's application:
A person who has an interest in a registered estate that would be prejudiced by the registration of a squatter may apply to the registrar to be registered as a person to be notified under paragraph 2(1)(d) of Schedule 6, Land Registration Act 2002.
The Solicitors or Conveyancers for the applicant must satisfy the registrar they have such an interest.
If the application is approved, the Land Registry will make the following entry in the proprietorship register:
"[name] of [address] is a person entitled to be notified of an application for adverse possession under paragraph 2 of Schedule 6, Land Registration Act 2002"
To remove the entry, the Solicitor or Conveyancer should apply to the Land Registry.
Leasehold matters:
Adverse possession of registered leasehold Land: As soon as the squatter takes possession of Land that is Leased, time runs against the tenant.
Time does not run against the Landlord until the Lease expires - unless adverse possession started before the Lease, in which case time will continue to run against the Landlord during the term of the Lease.
Non-payment of rent before the Lease expires is irrelevant. However if a stranger wrongfully continues to receive the rent of leasehold Property for 10 years, and provided that the Lease is in writing and not granted by the Crown and the rent is at least £10 a year, the stranger becomes entitled to apply under paragraph 1 of Schedule 6.
Encroachments onto registered Land from Leasehold Land:
Adverse possession requires "the intention, in one's own name and on one's own behalf to exclude the world at large". There is a legal presumption that a tenant who encroaches onto other Land does so for the benefit of his or her Landlord. At least on one view, this presumption means that there is no adverse possession by a tenant and that any application under Schedule 6 Land Registration Act 2002 should be by the tenant's landlord.
However, the presumption, by its nature, can be rebutted by evidence that the tenant actually intended the encroachment to be for his or her own benefit; and Land Registry are prepared to treat the fact that the application has been made as sufficient evidence of this intention for the Land Registry to proceed with the application. Furthermore, there is another view, which is that the presumption is only concerned with who might have acquired title at common law to the estate concerned and does not alter the fact that the tenant is in adverse possession, and so is irrelevant where the application is one under Schedule 6.
Statement of Truth
A statement of truth is a method of providing evidence in support of an application. It may be accepted by the Land Registry in place of a statutory declaration.
Requirements: For Land Registry purposes (as opposed to Court Proceedings) a statement of truth is as follows:
*it is made by an individual in writing
*it must be signed by the person who makes it (unless they cannot sign)
*it need not be sworn or witnessed
*it must contain a declaration of truth in the following form: "I believe that the facts and matters contained in this statement are true"
*If a Property Solicitor or Conveyancer makes the statement and signs it on a client's behalf, the Solicitor or Conveyancer must sign in their own name and state their capacity (for e.g. as Solicitor or Conveyancer for [name of client])
Statement of truth signed by an individual who is unable to read:
Where a statement of truth is to be signed by an individual who is unable to read it must:
*be signed in the presence of a Property Solicitor or Conveyancer, and
*contain a certificate made and signed by that Property Solicitor or Conveyancer in the following form:
'I [name and address of Property Solicitor or Conveyancer] certify that I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who signed it or made his or her mark in my presence having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration'
Statement of truth made by an individual who is unable to sign it:
Where a statement of truth is to be made by an individual who is unable to sign it, it must:
*state that individual's full name;
*be signed by a Property Solicitor or Conveyancer at the direction and on behalf of that individual, and
*contain a certificate made and signed by that Property Solicitor or Conveyancer in the following form:
I [name and address of Property Solicitor or Conveyancer] certify that [the person making this statement of truth has read it in my presence, approved its content as accurate and directed me to sign it on his/her behalf] or [ I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who directed me to sign it on his/her behalf] having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration'
Signature by a Property Solicitor or Conveyancer:
Where a statement of truth is made by a Property Solicitor or Conveyancer, or a Property Solicitor or Conveyancer makes and signs a certificate on behalf of someone who has made a statement but is unable to read or sign it, the Property Solicitor or Conveyancer:
*must sign in their own name and not the name of the firm
*must state the capacity in which they sign
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
For any further information please contact Ford Banks Irwin Solicitors.