Claiming land under Adverse Possession

With more and more of us now practising self-isolation and social distancing amid the coronavirus pandemic, now is the perfect opportunity for you to use your time wisely at home and do things which you never had time for before.  

One suggestion is that you can review your property title deeds. You may find yourself in a situation where you realise that a piece of land that you always considered to be yours, does not actually belong to you and forms a part of someone else’s legal title. So, what can you do in this situation? One solution is that you can apply to the HM Land Registry to acquire that land under adverse possession. 

What is Adverse Possession?

Adverse possession is the process by which a person who is not a legal owner of the land, can become the legal owner, by possessing the land for a specified period of time. 

There are two separate regimes governing the acquisition of land by adverse possession. The ‘old regime’ applies to unregistered and registered land where the possession relied upon is for a period of at least 12 years ending before 13 October 2003; whereas the ‘new regime’  applies to registered land and claims based on possession after 13 October 2003. Under the new regime you must show that you have been in possession of the land for at least 10 years. There are circumstances in which a longer period of possession is needed, e.g. when you are claiming adverse possession over Crown land.  

How can I prove Adverse Possession?

There are three keys elements to prove in a claim for adverse possession, regardless of whether the claim is in respect of unregistered or registered land. The applicant needs to show the following: 

  • Factual possession of the land: generally speaking this element requires proof that the land in question has been used by the applicant in a manner that an occupying owner would be expected to use the land e.g. where the land was previously open ground, fencing in is strong evidence  indicating factual possession; 
  • Intention to possess the land: this requires intention to possess the land and exclude the world at large, including the legal owner, so far as the law will allow; and 
  • Possession of the land in question without the legal owner’s consent.

What can the legal owner do to defeat my claim of Adverse Possession?

If you apply under the old regime and you are able to show all the three key elements to adverse possession then you are entitled to the land, and there is nothing that the legal owner can do to defeat your claim. 

However, if you are applying under the new regime it is far easier for the legal owner to defeat your claim. This is because the legal owner will be notified of your application and they have an opportunity to submit a counter notice to your application within the relevant time frame. 

Get in Touch

Adverse Possession is a common topic and one that is highly contested. If  you discover that the land you are currently using belongs to another person, or if you believe that someone else is trying to possess your land and you would like us to assist then, please do not hesitate to contact us on 0118 958 9711 or email [email protected] and a member of our Property Team will be in touch to assist with your query. 

Further Reading:

Can’t Pay Won’t Pay – The Reynolds Report

Residential Possessions during the Coronavirus Pandemic: What do you need to know?

COVID-19: Buying and Selling your Home. What Do I Do?

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