Adverse Possession Claims
What does adverse possession mean?
This is where a person can in some instances obtain title to a piece of land that is not theirs by reason of their long occupation of the land in question.
How does the above happen?
The original occupation does not need to be without the landowner's permission. It can for instance be by agreement between two individuals such as one person agreeing to cut the grass of another's garden or perhaps grazing animals on a field. But then carries on without permission.
Facts, facts, facts.
The factual backround is usually vital.
In particular, has the person now claiming ownership has been "in possession" of the land for a sufficient length of time to gain ownership? Has their occupation has not been as a squatter or trespasser but with the owner's permission? Does the person claiming title have any evidence of their possession?
Having got title through adverse possession it will be "possessory title". This can later be upgraded to full or absolute title.
Hurdles to overcome:
- Has the land been occupied with the owner's permission? For example, has the neighbour asked the owner to use the land. If so, this will normally be fatal to a claim for adverse possession;
- Has the person seeking ownership of the land acknowledged the original owner's ownership? For example, has the "new" owner been negotiating to buy the piece of land? Again, depending on how the offer has been put this may be fatal;
- Different rules apply as to the length of occupation needed depending on whether the land is registered or not;
- Has the land been fenced off or hedges laid?;
- Has the land been used by the acquiring person as if it is their own? Examples are repairing boundary fences, trimming hedges, clearing ditches, mowing, grazing etc?; and
- Has the acquiring person prevented other people gaining access on to the land including the original landowner e.g padlocking gates?
Adverse Possession claims in England and Wales were substantially altered by the coming into force of the Land Registration Act 2002 on 13 October 2003. However, the old law can still apply so squatters that can rely on 12 years worth of adverse possession before date can use the old law. Broadly, if someone is able to use the old law then their prospects of success will be higher.
Representative cases include:
- Clients and previous owners had for many decades used land running to a railway cutting as part of their garden. Successful application to the Land Registry acquiring title and increasing value of the house;
- Successfully applied to the Land Registry to register our clients as the legal owners of a cottage in rural Wales, that had been occupied and lovingly restored by them over many years;
- Acting for an elderly disabled owner of a block of woodland that was situated a long distance from his home. Their neighbour fenced off part of the woodland not able to be seen from road and so not visible by the client. This area was tended as a garden for a number of years by the other party. Fleet Law threatened Court action and an Injunction and the fence was put back to its original position;
- Boundary fence moved to our clients' benefit many years previously. When our clients planned to build an additional property on the land neighbours objected. After correspondence from Fleet Law, neighbours conceded that they had lost title by the position of the new fence;
- “Waste” land used by our clients as smallholders. No objection by the absent landlord until after his death when his family tried to claim the land back. Fleet Law successfully rejected the claim;
- Acted for owners of an ultra high value terraced property in central London. Poor quality conveyancing plans and vague definition of the size of the garden led to issues as to where the boundary line existed. Extensive researches carried out by Fleet Law into old conveyancing documents and obtaining evidence from previous owners and individuals who had visited the property and the garden enabled Fleet Law to show the boundary line where our clients claimed. Although the area of garden in dispute was small due to the property's location, the additional area substantially increased its value;
- Successfully acted for the registered owners of a piece of land in London which formed part of their garden. An adjacent Council tenant made an application for adverse possession of the land claiming she had occupied and incorporated the land into her garden since the 1980's. After reviewing the situation Fleet Law were able to draft and submit to the Land Registry a Notice of Objection and Counter Notice. The Land Registry rejected the applicant’s claim. This secured a valuable piece of garden for the clients, greatly increasing the value of their home;
- Acted for owners of a large house in Central London who had erected a wall on the inside of their boundary line. The neighbouring property sought later to claim the extra strip of land from the boundary line to the wall. Claim was successfully defended;
- Successful joint application made on behalf of two households who had together over many years enclosed and tended as garden an area of scrubland to the rear of their houses. A subsequent agreement by the households then divided the land up.
See also our FAQ's on Adverse Possession