Adverse Possession

What is adverse possession?

Adverse possession is a legal principle that allows a person who has occupied land or property without the owner’s permission for a continuous period of time to apply for legal ownership of that land. The relevant period is usually either ten or twelve years, depending on whether the land is registered or unregistered.

The person making the claim does not pay for the land, but they must satisfy a number of strict legal criteria to be successful. Adverse possession is sometimes referred to as squatter’s rights, though in practice it often arises in less obvious ways. One common example is when a person unknowingly or deliberately occupies part of their neighbour’s garden, yard, or field by extending a fence or wall beyond the true boundary line.

Why does adverse possession matter?

If a person is successful in their claim for adverse possession, they will become the legal owner of the land and the original owner will lose their ownership rights permanently. This can seem unfair, especially in cases where the original owner is unaware that any occupation has taken place, such as when a boundary is incorrectly positioned.

However, the purpose of the law is to prevent land from remaining unused or abandoned, and to reflect the reality of long-term, uninterrupted possession. It also encourages landowners to monitor and manage their land proactively.

Previously, the qualifying period for adverse possession was twelve years. Following legal reform introduced by the Land Registration Act in two thousand and twenty-two, the period required for registered land is now ten years. The new rules also provide a clearer process for notifying landowners and allowing them to object.

What are the requirements for adverse possession?

To claim adverse possession successfully, several legal conditions must be satisfied. These include:

Factual possession: The applicant must show they have had exclusive physical control over the land. This might include fencing the land, installing a locked gate, carrying out maintenance, or using the land for a consistent purpose such as gardening or farming.

Intention to possess: There must be clear evidence that the occupier intended to treat the land as their own. This can include actions such as making improvements to the land, excluding others from it, or maintaining it without assistance from the legal owner.

Lack of permission: The occupation must be without the consent of the legal owner. If any form of licence, lease, or other agreement is in place, then the possession is not considered “adverse” and cannot support a claim.

Passage of time: For registered land, the period of possession must be at least ten years. For unregistered land, the required period is twelve years. During this time, all of the above criteria must be continuously satisfied.

Adverse possession versus prescriptive easements

It is important to distinguish between adverse possession and a prescriptive easement. A prescriptive easement arises when someone has used land belonging to another person for a specific purpose, such as access or drainage, for at least twenty years without permission.

The key difference is that adverse possession involves a claim to ownership of the land itself, whereas a prescriptive easement grants only a limited right to use the land in a particular way. In adverse possession, the occupier must intend to exclude the legal owner altogether and treat the land as their own. In contrast, with a prescriptive easement, the legal owner retains ownership but must tolerate the specific use by the other party.

What is the process for making a claim for adverse possession?

The process begins with seeking legal advice from a solicitor who has experience in adverse possession cases. These cases can involve complex factual and legal questions, and a general property lawyer may not be familiar with the detailed procedures or evidential requirements.

If a solicitor believes you have a viable claim, the following steps are usually taken:

Gathering evidence: You must collect clear and reliable evidence to prove your possession of the land for the required time period. This may include photographs, dated documents, utility bills, invoices for work carried out, and witness statements. A clear plan showing the extent of the land occupied is also important.

Submitting an application: An application is made to the Land Registry, explaining how the legal requirements have been met and including all supporting evidence.

Notification of the landowner: If the land is registered, the Land Registry will contact the legal owner to notify them of your application. The landowner has sixty-five days to respond and object.

Responding to an objection: If the legal owner objects to your application, you may either withdraw the claim, negotiate with the landowner, or proceed to a legal hearing before the Property Tribunal or the court. Legal representation is essential at this stage, as losing a claim could mean paying the other party’s legal costs.

What to do if you receive notice of an adverse possession claim

For registered land, the time available to object is short. If you are a landowner and receive a notice from the Land Registry, you must act within sixty-five days or risk losing your land. If an objection is properly made, most claims will fail.

However, if the occupier remains in place for a further two years after a rejected application, they may reapply and succeed, provided they have continued to meet the legal conditions. Landowners should therefore not only object to a claim but also take steps to remove the occupier from the land and prevent their return.

For unregistered land, the position is more complex. A claim may still succeed if the occupier has met the twelve-year requirement and the legal owner has not taken action. As these cases often concern events from many years ago, the evidential burden can be high. It is essential to instruct a solicitor with experience in historic land ownership issues to help gather the necessary documentation and witnesses.

Taking early action is key. If you become aware that someone is occupying your land without permission, legal advice should be sought immediately. An injunction or possession order can remove the occupier and stop time from running on any potential claim.

We can assist with:

Evaluating the legal and factual basis for an adverse possession claim
Preparing and submitting applications to the Land Registry
Responding to objections or defending claims
Representing clients in negotiations, tribunal proceedings or court
Obtaining injunctions and possession orders to remove unauthorised occupiers