The process of acquiring land through adverse possession is where a person who is not the legal owner of land can become the legal owner by having possession of it for a specified period of time.
There are two procedures by which adverse possession may be claimed. Under the ‘old rules’ which apply to both unregistered (i.e. land not registered at the Land Registry) and registered land (i.e. land which has a Land Registry title number) before the Land Registration Act 2002 came into force on 13 October 2002, and the ‘new rules’ which only apply to registered land from 13 October 2002 onwards.
To ascertain whether a claim for adverse possession can be made under either the old or new rules, there are two elements which must be established:
- There must be factual possession of the land for the requisite period under either the old or new rules. Under the ‘old rules’ the period of possession claimed must be for a minimum period of 12 years ending before 13 October 2002, and under the ‘new rules’ this must be for a period of 10 years; and
- A claimant must be able to show they have the intention to possess the land during the period of factual possession.
It is therefore important that a claimant can show that they had a sufficient degree of exclusive physical control over the land in question. This will vary according to specific circumstances of the case but, essentially, the claimant needs to show that they have dealt with the land as an occupying owner would do and no one else has dealt with it in this way over the requisite period under either the old or new rules.
The intention to possess is also a very important element to an adverse possession claim and the claimant must show that they intended to occupy the land in their own name on their own behalf and to the exclusion of all others (including the legal paper owner), insofar as the law will allow them. This does not mean, however, that an intention to acquire ownership has to be evidenced.
If the claimant is in factual possession of the land, that will usually be sufficient to show an intention to possess it, but where the circumstances are less clear, other evidence of intention may be needed in support of the claim. For example, in the case of Central Midlands Estates Ltd v Leicester Dyers Ltd, the court held that parking cars on the disputed land did not show sufficient intention to possess the land or factual possession and something extra was required, such as enclosing the land with fencing or putting up parking signs. The evidence in support of an adverse possession claim will depend on the specifics of the case, however.
Get in Touch
The above is a brief overview of adverse possession and, if you would like any advice on whether a potential claim for adverse possession may be successful, or would like advice and assistance in making an application for adverse possession, please contact our Commercial Property Department on 0118 958 9711 or [email protected] where a team of specialists will be happy to help.