Adverse Possession means someone occupying land belonging to someone else, without permission. If someone does this continuously for a number of years (normally 10 or 12 years) then, in certain circumstances, the land may become theirs.
If you buy land, whether a house, a field, or an office, you need to be sure that the person you are buying from does actually have title to the land. Nobody can sell what they do not own. If a buyer pays money to a seller in return for the seller executing a document known as a “conveyance” the buyer obtains a good legal title to the (unregistered) land but only if the seller himself had good title. If it turns out that the seller did not have legal title to the land then the buyer will not have obtained any legal title, and the true owner, whoever that is, will still own the land.
Of course the disappointed buyer who discovers that he does not own the land after all can bring a claim against the seller for compensation but the seller may have spent the money and in any event if you buy land you want to be sure that you own the land – you don’t want to be at risk of losing it even if you will be compensated. So being sure that the seller does actually have a good title to the land is very important. That is why when you buy (unregistered) land your conveyancer will take care to ensure that the person selling the land does actually own it.
How can you tell that someone owns (unregistered) land? Generally by asking the seller to show you the conveyance which he has from the time when he bought the land. But how can you tell that the person he bought the land from actually owned it, and the person before him? Nobody can trace their ownership of land by documentary evidence back to the first grant of land by William the Conqueror in 1066. This is where the 12 year rule comes in. Providing you can trace back ownership and prove that previous owners were in possession for at least 12 years then you know the person selling to you had good legal title because even if some previous seller did not actually own the land, the 12 years possession ensures that good title has been obtained by adverse possession. So the buyer knows that when he buys he will have good legal title.
So although the idea of someone obtaining title by adverse possession for 12 years seems unjust, it is a necessary legal rule in order to ensure, for the benefit of innocent third parties, that there is certainty about title to land. The potential injustice of squatters obtaining ownership by being in possession for 12 years without permission is said to be tempered by the consideration that obliging owners of land who are not themselves in occupation, to check on their land at least once every 12 years to ensure no unauthorised person is in occupation, is not onerous.
At the other end of the spectrum is the situation where there is a dividing wall between the gardens of two properties, A and B. Both A and B assume that they own the land up to the wall and use their land as a garden right up to the wall. If it later transpires that the wall was, many years ago, erected in the wrong place, so that part of A’s land (as shown in his title deeds) was actually on B’s side of the wall, then A will have lost that part of his land, and B will have obtained ownership of it by 12 years adverse possession. In this case B (unlike the opportunist described above) had no intention of acquiring land he did not own – he thought all along that he owned it. He was wrong about that but he ended up owning it in the end by virtue of adverse possession.
Between these two extremes there are cases where someone starts using someone else’s land, knowing that it is someone else’s land but intending just to use it as their own for a long as they can, without necessarily having the motive of eventually getting title. For example someone with a freehold allotment, seeing the neighbouring allotment unused and gathering weeds, may decide to cultivate it for as long as they can, but if they end up doing so for 12 years, they may become the legal owner.
Because the rationale for the 12 year rule is to provide certainty of title for the benefit of innocent third parties, the law generally makes no distinction between different motives for possessing (unregistered) land. In order for someone to gain title by adverse possession they must possess in such a way as to show that they intend to possess but their beliefs about, and intentions as to, ownership as such are generally irrelevant.
Where land is registered then from 2003 there is greater protection from title being lost to someone else by adverse possession. If someone who does not own any adjoining land, occupies someone else’s registered land, then after 10 years adverse possession he can apply to the Land Registry to be registered as the new owner. However the current registered owner will be informed about the application and can object: the registered owner then has two years to start legal proceedings to have the squatter ejected, and only if they fail to take action, will the squatter, in two years time, be entitled to be registered as the owner. So there is significant, if not foolproof, protection for the registered owner in this situation.
If, however, the parties own adjoining land then, even for registered land there is reduced protection for the registered owner against adverse possession. If the example given above of two neighbours A and B (who, unknown to them, have a dividing wall in the wrong place) occurred in the case of registered land, then B could apply to be registered as the owner after 10 years possession providing he reasonably believed, during that 10 year period, that the land belonged to him. In this case A would not normally be entitled to object.
There are some other situations where registered land can be acquired by adverse possession without the registered owner being given notice before it is too late to object. For example if someone was in adverse possession of registered land for 12 years prior to 2003, then they can apply, and are entitled, to be registered immediately as the owner. The registered owner is not entitled to object (unless, of course, he can show that the squatter currently in possession was not in fact in adverse possession for 12 years prior to 2003).
The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but Contact me for advice
This page was lasted updated in October 2015 Disclaimer