When a person wishes to claim registration of their ownership at Land Registry by way of adverse possession, where this relates to a residential property cases are determined on their own facts and merits, but the threshold to evidence an intention to possess is extremely high. An “intention to possess” is just one of the essential requirements for an adverse possession claim and put simply, means that you must treat the land or property as your own to the exclusion of all others.
The Land Registry expects to see multiple sources of evidence to assist in demonstrating the essential intention to possess requirement has been met.
It is worth bearing in mind that section 144 of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 now makes it a criminal offence to trespass by living within a residential building that is not your own. This contradicts the basic principles for any adverse possession claim which is that you must exclusively occupy the property, show a clear intention to possess whilst excluding all others from the property and do so without any permission or consent. The old latin principle Nec vi, nec clam, nec precario (without force, without secrecy, without permission) applies.
However, in a previous case (Best -v- Chief Land Registrar 2015) this contradiction was queried by the Land Registrar who was concerned that a trespasser would inappropriately gain a benefit from criminal conduct. The Court of Appeal ruled in this case that criminal trespass should not have a detrimental effect on a claim for adverse possession for registered land.
This does not alter the criminal position, however it does confirm that an application for registration of a residential property by way of adverse possession is still capable of success.
Adverse possession is a complex area of law and when considering an application, advice should be sought to ensure the application is in the best form possible prior to submission.
For further advice please contact Chloe May on 01604 887455 or via email on chloe.may@maxengel.co.uk
