Adverse possession is a legal process through which a person who is not the legal owner of a piece of land may become its legal owner by occupying it (possessing it) without the consent of the true owner (adversely) for a required period of time.
This rule may initially seem unusual, and indeed it is, but a common justification for it is that it promotes efficient land use. Claims for adverse possession most often arise in boundary disputes, especially where boundaries are unclear. Interestingly, claims can also arise when a squatter has lived on a residential property, even though it is a criminal offence to trespass on a residential property.
Whether you intend to make an application for adverse possession or wish to prevent or defend such a claim, it is crucial to seek legal advice promptly.
The requirements to make a claim in adverse possession
To successfully establish adverse possession, two elements must be satisfied. First, the claimant must demonstrate continuous factual possession of the land, combined with an intention to possess it. The required minimum period of possession depends on whether the land is registered or unregistered. For registered land, the period is 10 years. For unregistered land, or where the period of possession of registered land ended before October 13, 2003, the period is 12 years.
“Factual possession” and “intention to possess” pertain to the relationship between the squatter and the land. To establish factual possession, a squatter must demonstrate a sufficient degree of physical control over the land, which is specific to the nature and usual use of the land in question. The squatter must prove that they have dealt with the land as though they were the owner and have done so exclusively. The intention to possess element requires the squatter to show that it was their intention to possess the land in their own name and to exclude others throughout the period of possession. The required intent is inferred from the acts of factual possession on which the squatter relies.
If a squatter can demonstrate continuous factual possession with an intention to possess the land for the required time period, they may apply to be registered as the owner of the land. A successful application grants the squatter possessory title over the land they have occupied.
How to prevent an adverse possession claim
The saying “prevention is better than cure” certainly applies to dealing with adverse possession.
Initially, it’s crucial to determine whether you are the rightful proprietor of the land in question. While this is usually clear, in cases where boundaries are uncertain, obtaining HM Land Registry title plans can reveal the general position of boundaries. If clarity is still lacking, reviewing any deeds for the land may offer more detailed boundary information. Assuming you are the landowner, the following strategies can be considered to counter a squatter’s claim to your land:.
As you may recall, factual possession requires exclusive physical control of the land. Therefore, interrupting the squatter’s possession can invalidate their claim. Methods to disrupt the squatter’s possession include physically enclosing or regularly maintaining the land. Removing any barriers erected by the squatter may also suffice, but care must be taken to avoid damaging the barrier in the process. Interestingly, legal precedent suggests that interruptions need only be for a brief period, even as short as one hour.
Additionally, for possession to be adverse, it must occur without the owner’s consent. Granting express or implied permission to the squatter prevents them from claiming adverse possession. It’s advisable to document any permission granted, such as by providing the squatter with a licence to use the land.
Another option is to initiate possession proceedings against the squatter to remove them from your land. However, this approach carries risks, as an evicted squatter who previously held adverse possession for the required period could still make a claim based on their previous possession.
