Adverse possession, sometimes referred to informally as "squatters' rights," represents a well-established legal principle allowing a person to gain ownership of land they have occupied without the registered owner's permission for a defined period. Although the concept is straightforward at first glance, its application, particularly when involving unregistered land, is complex, raising challenging questions frequently encountered in legal practice.
Understanding adverse possession in the context of unregistered land
Adverse possession arises when a person occupies and maintains land without permission from the actual registered or unregistered owner, with the intention to use it as their own. Historically, English common law has recognised adverse possession claims for centuries.
However, significant statutory changes were implemented by the Land Registration Act 2002, directly affecting land claims.
Notably, despite these legal reforms, adverse possession claims involving unregistered land still follow largely traditional common law principles.
The Limitation Act 1980 remains the primary legislation governing adverse possession of unregistered land. Under this Act, a claimant must demonstrate continuous adverse possession of the land for a time period of at least 12 years. The common law principles are then applied.
After a qualifying possession, the original owner's title extinguishes, and the occupier may assert a claim of ownership. Thus, careful examination of occupation periods, documentation, and evidence is critical in determining the validity of adverse possession claims.
Essential elements to establish adverse possession of unregistered land
To be successful, claims of adverse possession must satisfy specific legal elements. These elements include:
Factual possession: The claimant must physically occupy the land and treat it as their own. This requires clear evidence of exclusive use, such as erecting fences, buildings, cultivation, or other demonstrable forms of occupation. Occasional or sporadic use generally does not constitute factual possession for adverse possession claims.
Intention to possess: The claimant must clearly demonstrate an intention to exclude the world at large, including the true legal owner, from the land. This intention must typically exceed mere casual trespassing.
Continuous period of occupation: Under the Limitation Act 1980, a claimant must have been in uninterrupted occupation of the land for a minimum of 12 years. Any significant disruption in this period can reset the clock for the required duration of possession.
It is also important to note that no permission or licence to occupy should have been granted by the landowner; any authorised occupation will automatically invalidate a claim based upon adverse possession.
Process involved in making a claim for adverse possession of unregistered land
Unlike claims involving registered land, which require applications to the Land Registry, claims involving unregistered land adhere to a different procedure. Typically, the claimant must compile sufficient evidence to substantiate their claim, demonstrating clearly the above parameters of possession.
Once adequate evidence is available, a claimant may apply to the Land Registry for first registration of the land. This involves submitting documentary evidence of adverse possession alongside supporting statutory declarations providing clear evidence to establish factual possession for the requisite period.
When reviewing an application, the Land Registry will carefully examine the evidence presented, ensuring compliance with the Limitation Act 1980. The Registry may inspect the property, request additional information, or require statutory declarations from independent parties confirming the claimant's adverse use and occupation.
Frequently asked questions about adverse possession of unregistered land
What if the original landowner contests the adverse possession claim?
If the unregistered landowner objects or contests a claim for adverse possession, litigation in the Tribunal or Court may ensue. Legal representation may then become important, as the claimant must convincingly demonstrate the validity of their claim under the established criteria at law.
Is there a difference between claiming adverse possession for registered and unregistered land?
Yes. Although both involve similar definitions of adverse possession, practical differences exist in procedure and legislation governing each. For unregistered land, claims are subject to common law principles and the Limitation Act 1980 with a 12-year time frame, while claims involving registered land usually follow procedures under the Land Registration Act 2002, and are subject to additional requirements and procedural hurdles, making unregistered land claims somewhat less complicated.
Can adverse possession be claimed over part of a property?
Yes, adverse possession claims can be made relating to an identifiable portion of land, provided the claimant demonstrates exclusive factual possession and intention to possess that specific area. Clear boundaries, such as permanent fences, hedges, or walls, must delineate any claimed portion.
Legal advice recommended in adverse possession cases
Claims for adverse possession, particularly involving unregistered land, are inherently complex, requiring detailed understanding and fulfilment of stringent criteria. Small mistakes can significantly weaken the claimant's position, potentially resulting in the denial of their claim.
It is strongly advisable that anyone seeking to pursue a claim for adverse possession obtains expert legal advice early. A solicitor experienced in such matters will carefully evaluate the claim, identify potential difficulties and assist in compiling evidence and preparing statutory declarations—maximising the likelihood of success in what can otherwise be a challenging area of property law.
Final points
Adverse possession of unregistered land remains a viable, though intricate, legal possibility in England and Wales. By thoroughly understanding and demonstrating the essential elements—factual possession, intention to possess, and continuous occupation over 12 years—individuals can confidently navigate this legal landscape.
A detailed understanding of the legal criteria, statutory framework, and procedural requirements is essential, as is the guidance of an experienced solicitor to achieve the best result possible in this complex area of law. Contact us today on 0161 696 6178 or via our online enquiry form.
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