Adverse Possession

What is Adverse Possession?

Adverse possession occurs when someone occupies land owned by another person without their permission and treats it as their own for a specified period of time. If certain conditions are met, the occupier can acquire legal land ownership. This concept serves various purposes, such as encouraging the productive use of land and resolving disputes over land ownership that might otherwise remain unsettled.

Historical Context and Legal Framework

The doctrine of adverse possession has deep roots in common law, with its origins traceable to mediaeval England. Historically, the law sought to resolve conflicts over land ownership in a society where formal title deeds and records were less common. Adverse possession aimed to promote stability and ensure the land was not left idle by rewarding those who actively used and maintained the land.

The legal framework governing adverse possession in England and Wales is primarily found in the Limitation Act 1980 and the Land Registration Act 2002. The Limitation Act 1980 establishes the basic principles and timeframes for adverse possession, while the Land Registration Act 2002 introduces significant reforms, particularly for registered land.

Conditions for Adverse Possession

To successfully claim adverse possession, several conditions must be met. These conditions are intended to ensure that the occupier has genuinely taken control of the land and that the true owner has had ample opportunity to assert their rights. The fundamental conditions include:

Actual Possession

The claimant must demonstrate actual possession of the land. This means they must have a physical presence on the land and use it in a manner consistent with ownership. Activities such as building structures, cultivating crops, or maintaining the property can all constitute actual possession. Mere occasional use or sporadic visits are insufficient.

Exclusive Possession

The possession must be exclusive, meaning the claimant must exercise control over the land to the exclusion of others, including the legal owner. Shared or joint use of the land with the true owner or others will typically defeat a claim of adverse possession.

Continuous Possession

Possession must be continuous for a specified period. Under the Limitation Act 1980, this period is generally 12 years for unregistered land. However, the Land Registration Act 2002 introduced more stringent requirements for registered land, including requiring the adverse possessor to notify the registered owner, who then has the opportunity to object.

Possession Without Permission

The claimant’s possession must be without the permission of the legal owner. Adverse possession cannot be claimed if the owner has granted permission, such as through a lease or licence.

Intention to Possess

There must be an intention to possess the land. This is often inferred from the claimant’s actions and conduct on the land. The intention to possess does not mean the claimant must own the land legally, but rather that they intend to exclude others and exercise control over it.

Adverse Possession of Registered Land

The Land Registration Act 2002 significantly altered the landscape for adverse possession of registered land. One of the fundamental changes was the introduction of a procedure requiring the adverse possessor to apply to the Land Registry after ten years of continuous possession. Upon receiving such an application, the Land Registry notifies the registered owner, who has 65 business days to object.

The adverse possessor’s claim is generally defeated if the registered owner objects unless certain exceptional circumstances apply. These circumstances include:

• Estoppel: where the registered owner has led the adverse possessor to believe they have acquired the land.
• Mistake as to Boundary: Where the adverse possessor reasonably believed the land was within their boundary.
• Some Other Exceptional Circumstance: Any other situation where it would be unconscionable for the registered owner to assert their title.

If the registered owner does not object within the specified period, the adverse possessor may be registered as the land’s new owner.

Defences Against Adverse Possession

Landowners who wish to protect their property from adverse possession can take several steps to defend against potential claims:

Regular Inspections

Regular property inspections can help landowners identify any unauthorised use or occupation early. Prompt action can then be taken to remove trespassers or clarify the nature of any occupation.

Clear Boundaries

Maintaining clear, well-defined boundaries can prevent disputes and reduce the likelihood of adverse possession claims. Installing fences, signs, and other markers can help delineate property lines.

Granting Permission

If someone occupies part of the land, granting formal permission through a lease or licence can prevent an adverse possession claim. This establishes a legal basis for the occupation and negates the requirement for possession without permission.

Legal Action

Landowners can legally remove the occupier if an unauthorised occupation is discovered. This may involve seeking an injunction or possession order from the court.

Implications for Landowners and Occupiers

Adverse possession has significant implications for both landowners and occupiers. For landowners, it highlights the importance of vigilance and proactive property management. Neglecting to monitor and protect land can result in the loss of valuable assets.

Adverse possession provides a potential pathway for occupiers to formalise their interest in the land they have been using for an extended period. However, it is a complex and often contentious process that requires careful navigation of legal requirements and potential disputes.

Case Law and Examples

Understanding adverse possession is further enriched by examining relevant case law and examples. Several landmark cases have shaped the interpretation and application of the doctrine:

JA Pye (Oxford) Ltd v Graham [2002] UKHL 30

This House of Lords case is a seminal example of adverse possession. The Grahams occupied farmland owned by JA Pye (Oxford) Ltd without permission and used it for grazing cattle. After 12 years, they claimed ownership through adverse possession. The House of Lords ruled in favour of the Grahams, emphasising that they had demonstrated the necessary elements of adverse possession, including factual possession and an intention to possess.

Buckinghamshire County Council v Moran [1990] Ch 623

In this case, Moran occupied a piece of land owned by Buckinghamshire County Council. Moran fenced, maintained, and used the land as part of his garden. The court held that Moran’s actions constituted adverse possession, as he had exclusive and continuous possession with the intention to possess.

Zarb v Parry [2011] EWCA Civ 1306

Zarb v Parry involved a boundary dispute where the Parrys claimed adverse possession of a strip of land. The court found in favour of the Parrys, recognising that they had met the conditions for adverse possession by maintaining and using the disputed land as their own.

Practical Considerations and Advice

For individuals and businesses dealing with potential adverse possession issues, several practical considerations and pieces of advice can help navigate this complex area:

Seek Legal Advice Early

Engaging a solicitor with expertise in property law is crucial when dealing with adverse possession. Early legal advice can help clarify rights, assess the strength of a claim, and determine the best course of action.

Gather Evidence

Collecting and preserving evidence of possession, such as photographs, receipts for improvements, and witness statements, can strengthen an adverse possession claim or defence. Detailed records of how the land has been used and maintained are invaluable.

Communicate with Neighbours

Maintaining open communication with neighbouring landowners can help resolve potential disputes amicably. Understanding and agreeing on boundaries can prevent misunderstandings leading to adverse possession claims.

Monitor The Property Regularly

Regularly inspecting and monitoring property, particularly unoccupied or remote land, can help identify any unauthorised use early. Prompt action can then be taken to address potential adverse possession issues.

Formalise Occupation

If someone is using part of your land, consider formalising the arrangement through a lease or licence. This can provide legal clarity and prevent adverse possession claims.

Conclusion

Adverse possession is a complex and nuanced area of property law with significant implications for landowners and occupiers. Understanding the conditions and legal framework governing adverse possession is crucial for protecting property rights and navigating potential disputes.

At DLS Solicitors, we are committed to providing expert guidance and support on all matters related to adverse possession. Whether you are a landowner seeking to defend against a claim or an occupier looking to formalise your interest in land, our team of experienced solicitors is here to help. By combining legal expertise with practical advice, we ensure our clients are well-equipped to handle the challenges and opportunities presented by adverse possession.