An Adverse Possession Q&A

Adverse possession (sometimes known as squatters’ rights) is the legal doctrine which allows a person who has been in occupation of land or property for a specified period of time and who meets certain rules and requirements, to become registered as the owner of that land.

Registration claims by way of adverse possession is a complex area of law and we are frequently consulted for guidance on this and to submit applications for registration to the Land Registry for properties and pieces of land.

Below are responses to several questions we are frequently asked.

What is an “intention to possess”?

The Land Registry guides and statute refer to an intention to possess being an essential requirement when making an application for registration of land based on adverse possession.  Simply put, an applicant must show they do more than use the land for the required time period, they must show they have sufficient control over the land and have invested themselves to assert full custody of the area claimed.

What is the difference between Possessory Title and Title Absolute

When a property or piece of land is registered with the Land Registry it will be given a class of title (ownership). Absolute title (absolute ownership) is the usual and most desirable class of title as this will usually set out in the documentation, all matters which that land is subject to and has the benefit of.

Possessory title is granted when ownership has previously been unregistered and there are no formal deeds in place to fully document the ownership or provide information on any rights or restrictions which might affect the land. It is so named because a person who “possesses” or occupies land usually has acquired rights which can give rise to ownership in the absence of any other rights.  For example, possessory title may be granted if the deeds have been lost or have been destroyed, or indeed if a person is in long term occupation without any documented right to be.

It is usual for the Land Registry to grant possessory title of unregistered land claimed by way of adverse possession as there are no formal documents to fully complete the title. Possessory title effectively means ownership, but with the caveat that any person who can prove (by producing the necessary deeds and documents) better right to ownership can defeat it, so it comes with the risk that a third party might be able to prove better title, and your possessory title can be lost, whereas absolute title is usually unassailable.

It is worth mentioning that if you are applying for adverse possession of land which has already been registered, you are very likely to be awarded the same class of title that it already has, and so will acquire absolute title. If you are applying for adverse possession of unregistered land, you will be granted possessory title as the Land Registry is not able to grant anything else, however this can be upgraded to title absolute after 12 years (when the rights of the true owner fall away due to the expiry of the limitation period) by way of a straightforward application.

Is fencing required to satisfy the actual occupation requirement?

While each case is considered on its own merits, and fencing is a clear way of excluding all others from an area of land or property, this is not an absolute requirement.  Case law has established that areas which are not enclosed by way of fencing are, in some situations, capable of registration by way of adverse possession, however given the complexities we would recommend you take legal advice before submitting any application.

Can the required time period be shared between subsequent owners?

Yes, the required time period in occupation to claim registration by way of adverse possession can be split between multiple previous owners, as long as the evidence is successive and shows a continuous use.

Can I claim adverse possession of some land which I am occupying?

As you may glean from the above, the position is rarely straightforward. If you have any queries or would like to discuss a potential claim, please contact Chloe May on 01604 887455 or at chloe.may@maxengel.co.uk