Adverse Possession Claims
What does adverse possession mean?
This is the process where a person who originally does not own land becomes the legal owner due to his occupation of that land for a period of time. Sometimes the original use of the land can be by agreement between the two individuals such as one party agreeing to cut the grass of another's garden or perhaps grazing animals on a field. Lots of factual questions arise in this type of land dispute and, in particular, whether the party now claiming ownership has been "in possession" of the land for a sufficient length of time to gain ownership or whether their occupation has not been as a squatter or trespasser but with the owners permission. Does the person claiming title have any evidence that they have been squatting ie in possession of the land? Having got title through adverse possession the title acquired is known as "possessory title". This can later be upgraded to full or "absolute title".
Significant factors are:
- 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 his/her own; such as repairing boundary fences, trimming hedges, clearing ditches, mowing, grazing etc.
- Has the acquiring person prevented other people gaining access on to the land including the original landowner eg padlocking gates?
In Adverse Possession UK claims (save for Scotland and NI) the law substantially altered by the coming into force of the Land Registration Act 2002 on 13 October 2003. However, crucially 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. This distinction may make the difference between a person ending up with the land registered in their name or not.
Representative cases include:
- Acting for an elderly disabled owner of a block of woodland that was situated a long distance from his home. 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 Solicitors threatened Court action and an Injunction and fence 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 neighbours conceded that they had lost title to the part of their land 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 Solicitors 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 into old conveyancing documents and obtaining evidence from previous owners and individuals who had visited the property and the garden enabled Fleet to show the boundary line was 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 1980s. After reviewing the situation we were able to draft and submit to the Land Registry a Notice of Objection and Counter Notice. On consideration of these documents, 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 ereceted a wall on the inside of their boundary line. The neighbouring property sought some time later to claim the extra strip of land from the boundary line to the wall. claim 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 Posession