Most people are generally aware of the term “squatters rights” which in principle, allows a person who has been in possession of a piece of land for a long period of time to apply to acquire legal title to it. Given that this is a potentially lucrative endeavour for such a person, it is no surprise that the law surrounding it is complex and detailed.
The legal term for “squatters rights” is adverse possession and there are two separate regimes under the Land Registration Act 2002 which deal with such claims.
The first regime
In order to make an application for adverse possession of unregistered land or where the land was registered as at 13 October 2003 and there had been adverse possession for the appropriate limitation period by that date, it must be shown that:
1.The squatter has factual possession of the land
The question of whether a squatter has physical control of the land is a matter of fact and each case will be considered on its own merits. Broadly speaking however, evidence that shows that the squatter has used the land as an occupying owner might have been expected to deal with it will be compelling. Where land was previously open space, fencing is strong evidence of factual possession, but is not conclusive.
In a recent case in 2019, the court went even further when they decided that the act of laying paving slabs on the ground was sufficient to show physical possession of the land which gave the person the ability to be registered as the legal owner.
2. The squatter has the necessary intention to possess the land
The squatter must show that they intended to exclude the world at large from the land and possess it as their own. Most often, if factual possession has been established, the intention to possess the land will also be deduced from the same evidence, but not always.
3.The squatter’s possession is without the owner’s consent
Possession can never be adverse if the true paper owner has consented to the occupation, for example, under a lease or licence.
Each of the above factors must be shown to have been in existence continuously for a period of at least 12 years. The time limit is extended in certain circ*mstances for example where the land is owned by a Government department or has vested in the Crown as bona vacantia.
The second regime
The Land Registration Act 2002 introduced a new regime which applies only to registered land and no longer allows a squatter to acquire land by virtue of a period of possession alone. A registered proprietor of land will be more likely to be able to prevent an application for adverse possession succeeding under this regime.
All three of the requirements detailed above are required to establish a claim for adverse possession under the second regime and must be demonstrated for a continuous period of at least 10 years.
Provided such conditions are satisfied an application may be submitted to the Land Registry. However, this is where the process differs as the Land Registry will give notice of the application to the registered proprietor of the land in question (and any other applicable interested party). The notice allows 65 working days for a response and gives the true owner the opportunity to object to the application or serve a counter-notice.
The application may be objected to on the basis that the squatter is not entitled to apply on the facts of the case, for example, they were occupying with the consent of the true owner. If the registrar considers that the objection is not groundless, they will notify the squatter and allow the parties to come to an agreement between themselves. If such an agreement cannot be reached, the matter is transferred to tribunal.
If the true owner serves a counter-notice, then unless the squatter has stated in their original application that they wish to rely on one of the three conditions under Schedule 6, paragraph 5 of the LRA 2002 (see below), the application will be automatically rejected.
Even if a counter-notice is served, the application can still succeed if one of the three conditions are met, being:
1. It would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the circ*mstances are such that the squatter ought to be registered as the proprietor. An example of this may be where the squatter has built on the land in the mistaken belief that they were the owner of it and the proprietor has knowingly acquiesced in their mistake.
2. The squatter is for some other reason entitled to be registered as the proprietor. For example, where the squatter is entitled to the land under the will or intestacy of the deceased proprietor.
3. Thesquatterhas been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined under section 60 of the LRA 2002 and the estate to which the application relates was registered more than a year prior to the date of the application. The most common example is where dividing walls or fences were erected in the wrong place.
If the squatter’s application was rejected but they remain in adverse possession for a further 2 years from the date of the rejection, they will be entitled to reapply and be registered as the proprietor (save for in exceptional circ*mstances).
The process and legal requirements vary depending entirely on the circ*mstances of each individual case. It is therefore essential that you seek legal advice to ensure the correct procedure is followed to maximise the chances of an adverse possession application being successful.
For any further information, please contact Lauren Purdey in our Real Estate department. You can also email your query to realestate@herrington-carmichael.com or lauren.purdey@herrington-carmichael.com, call 01276 686222 or visit https://www.herrington-carmichael.com/.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
