Adverse Possession of Land
What is Adverse Possession?
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.
Why the law allows an adverse possessor of land to become the owner
At first sight it seems surprising that the law should allow people to obtain title to land just by occupying it for a long time but the reason for this legal rule is to protect innocent third parties by ensuring certainty about legal title to land.
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 themselves 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 they do 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 they have from the time when they bought the land. But how can you tell that the person they bought the land from actually owned it, and the person before them? 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 they buy that they 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 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.
As well as helping to ensure good legal title for the benefit of third party buyers, the law of adverse possession helps to ensure that unused land does not become a nuisance. If land in a farming area is unused it will collect weeds and/or become a base for pests both of which may interfere with the farming of neighbouring land. Unused land in a built up area may become a nuisance if, for example, structures on it become unsafe (either through natural deterioration or because of vandalism) or if rubbish is deposited on it. Neighbours may try to contact the owner of the unused land but what if the owner cannot be found? The law of adverse possession is a partial answer to this problem. If the owner of unused farmland, for example, cannot be found, a neighbouring landowner may start to use the land - the law of adverse possession encourages them to do so because they might possibly be able to obtain good title and even if the true owner turns up before the adverse possessor has been in possession long enough to gain legal title the temporary possession will at least have mitigated the nuisance problem meanwhile.
Adverse Possession in practice
The circumstances in which adverse possession is allowed to occur, and the motives underlying it, in practice vary. At one end of the spectrum there are opportunists who are not neighbours but who see unused land and decide to settle there with the deliberate intention of staying, if they can, for 12 years, in order to become owners of the land.
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 their title deeds) was actually on B’s side of the wall, then A will have lost that part of their 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 they did not own – they thought all along that they owned it. They were wrong about that but they 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 without permission but their beliefs about, and intentions as to, ownership as such are generally irrelevant. Also someone in adverse possession can rely on adverse possession by their predecessors so someone who acquires land from someone who has been in adverse possession for 7 years only has to be in possession for a further 5 years in order to claim title.
Adverse Possession of Registered Land
In order to try to ensure even greater certainty about title to land there is a Land Registry and whenever land is bought and sold it must now be registered at the Land Registry. There is, however, still a lot of land which was last sold before registration became compulsory and which is as yet unregistered.
Where land is registered 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 they 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 protection for the registered owner in this situation as long as the registered owner keeps their registered contact details up to date. However special rules apply if the person in adverse possession (and/or their predecessors) has been in possession for a very long time (since before 1991) - in that case the registered owner may have less protection.
If the parties own adjoining land then, even for registered land there is reduced protection for the registered owner against adverse possession. In 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 at least 10 years possession providing they reasonably believed, for at least 10 years during the period that the land belonged to them. They probably will not believe (that the land belongs to them) shortly before they make the application because usually it is the discovery of the anomaly that prompts the application, but if they did believe for at least 10 years before the discovery then they can apply. In this case A would not normally be entitled to object (unless, for example, A can show that B was not in possession for the full period or that B's belief was not genuine or was unreasonable).
Generally the person in adverse possession has to apply to the Land Registry when they are still in possession of the land but if they are forcibly evicted (without a court order) by the registered owner they have 6 months from the date of eviction to make an application (and, meanwhile, they can apply to the court for an urgent injunction to put them back in possession). If they wait for more than 6 months before making a Land Registry Application they will usually be too late unless they or their predecessors have been in possession for some continuous period of at least 12 years prior to 2003 when special rules may apply.
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 January 2019 Disclaimer