Frequently Asked Questions: Adverse Possession
Expertise: Our team has handled numerous adverse possession cases successfully.
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Adverse possession refers to a situation where an individual or entity occupies land which legally belongs to another person or unknown person for a specified period, potentially allowing them to claim legal ownership. This can happen with or without the legal owner’s knowledge.
For a claim to be successful, the following must typically be proven:
Factual Possession: The claimant must have physical control over the land.
Intention to possess: The claimant must demonstrate an intention to possess the land.
Without consent: The occupation must be without the legal owner’s permission
Period: The occupation must have lasted for a specified period (usually 10 or 12 years, depending on circumstances).
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.
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.
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.
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.
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 887450 or at chloe.may@maxengel.co.uk
– Initial assessment of your case
– Guidance on gathering the necessary evidence
– Representation in negotiations and court proceedings
– Completion and submission of any applications to the Land Registry
– Clear, jargon-free advice throughout the process
Our experienced property lawyers can assist whether you’re;
– Claiming adverse possession
– Defending against an adverse possession claim
– Seeking advice on boundary disputes that may involve adverse possession
