Adverse possession: when do squatter’s rights apply?

When do squatter’s rights come into play and in what circumstances can you secure ownership of a piece of land that is not yours? Darren Higginson, Associate and property litigation expert at Coodes Solicitors, explains the rules and regulations around adverse possession.

It is important for owners and occupants of land to be aware of the rules and regulations surrounding adverse possession, sometimes known as “squatter’s rights”, and the circumstances in which someone can become the owner of somebody else’s land.

I have recently dealt with a number of land disputes and applications for ownership based on adverse possession. One of these cases involved a client discovering that part of their garden was registered to someone else. I obtained a statement from the previous owner who confirmed that a neighbour had told him that he could have this extra land in the 1970s but no contract of sale or deed of gift was ever drawn up. I was able to demonstrate that the client was entitled to it by adverse possession. When I presented the evidence to the actual owners they agreed to transfer it to our client voluntarily.

How do I claim ownership of land by adverse possession?

If you want to claim land by adverse possession, you must prove you have had uninterrupted, exclusive, physical control of the land for a certain period of time and an intention to possess the land during that period.

Before the Land Registration Act 2002 came into force, you could claim land by adverse possession if you had occupied it for at least 12 years. This is still the case in relation to unregistered land or if the squatter had been on the land for 12 years by 13 October 2003. After this date the new procedure requires squatters to show that they have had possession of the land for at least 10 years at the date of their application.

What happens after I make my application?

Under the new procedure, once you have made your application to the Land Registry, a notice will be sent to the owner of the land, who has 65 business days to object. In some situations, the owner can simply object to the application, for example, because the squatter has not been on the land for the necessary 10 years, or they can give a counter-notice which requires the squatter to show that their situation falls into one of the three categories:

1. That it would in some way be morally wrong for the owner to defeat the application, for example, where the owner allowed or encouraged the squatter to believe that they actually owned the land;

2. That the squatter is for some other reason entitled to become the new owner of the land, for example, where they contracted to buy the land from the owner and paid the purchase price but the land was never transferred to them;

3. That the land is next to land already owned by the squatter, the exact line of the boundary between the two pieces of land has never been formally determined and the squatter mistakenly but reasonably believed that they were already the owner of it.

If no objection to the application is received, or if the owner’s objection fails, the squatter will be registered as the new owner of the land.

Another recent case of mine falls into the third category above. It involved a piece of land that was sold to a parish council in the 1990s. A fence was erected almost immediately to mark the boundary. Our client bought the retained land three years later and recently decided to divide that land to make a building plot but discovered that the boundary shown on the title plan for her property with the parish council’s land was a different shape from the line of the fence.

If there is any land within the client’s garden that is outside the boundary line shown on her title plan she will be entitled to make a claim for adverse possession of that land because she has been in exclusive possession of it for at least 10 years, the land is next to land that she definitely does own and she reasonably believed that the land was hers and the boundary between her land and the parish council’s land has never been determined by the Land Registry.

What if my application for adverse possession fails?

If your application fails because the owner serves a counter-notice and you do not fall into one of the three categories above, you can apply to the Land Registry again at a later date, providing you remain on the land for a further two years.

It is much more likely that you will succeed with your application the second time around if the owner has failed to evict you from the land in the meantime.

If you are affected by any of these issues, please contact Darren Higginson in the Personal Disputes team on 01726 874700 or darren.higginson@coodes.co.uk