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Adverse Possession

The rules relating to adverse possession changed on 13 October 2003 when the relevant provisions of the Land Registration Act 2002 ("LRA 2002") came into force.

Over the last 12 years we have seen various parts of the new rules litigated in a number of high profile cases but it is important to consider the core elements of a claim to adverse possession:

What do I need to show in order to submit a claim for adverse possession?

Since the LRA 2002 came into force there are now two separate regimes which deal with what an applicant is required to show to establish a claim for adverse possession.  It is important to note that each of the regimes has a slightly different set of rules.

The 'old regime' applies to claims based on possession prior to 13 October 2003 and claims relating to unregistered land whereas the 'new regime' applies to registered land and claims based on possession after 13 October 2003.  Which particular regime you are required to follow, and therefore what you will need to show to establish your claim, will depend on whether the land is registered and whether you can establish 12 years of possession of the land prior to 13 October 2003. 

The requirements which are common to both the old and the new regime are factual possession and an intention to possess.

In order to establish factual possession, you must be able to establish a single and exclusive possession of the land. This requires you to have treated the land as your own when no one else (such as the current owner) was doing so. You must also be able to establish that you have carried out a history of acts which demonstrate that you have been dealing with the land in a way that the owner might have and that the owner has not consented to your use of the land.

An intention possess on the other hand requires you to show that you have had an intention to possess the land.  This is often established by the acts you have carried out upon the land during your period of occupation.

If you are applying pursuant to the new regime you will also need to show that you can satisfy one of the three 'conditions' if the registered proprietor serves a counter-notice in response to your application.

The three conditions are as follows:

1. You have detrimentally relied on an assurance by the registered proprietor in circumstances where it would be unconscionable for the assurance to be withdrawn; or
2. You have some other right to the land; or
3. A reasonable mistake has been made as to boundaries.

In practice, the most commonly relied on conditions are numbers 1 and 3.

The two examples given by Land Registry of where condition 1 might apply are:

1. Where you have built on the registered proprietor’s land in the mistaken belief that you are the owner of that land and the registered proprietor has known what you have done but has not done anything to prevent you from building or to require you to rectify the situation  in you mistake and
2. Where an informal sale agreement has been entered into where one party agrees to sell the land to the other and where the ‘buyer’ pays the price, takes possession of the land and treats it as their own although no steps are taken by the 'buyer' to formally obtain title to the land. 

The example given by Land Registry where condition 2 might apply is where a dividing wall or fence were erected in the wrong place.

These are only the examples given by Land Registry and it is possible that the conditions may be satisfied in other cases.

How long must I have occupied the land before I can submit an application to be registered as the owner?

The answer to this question depends on whether you are eligible to make an application under the old regime or the new regime.

If you have occupied the land for a period of 12 years or more up to 13 October 2003 then you will be able to use the old regime.  If not, you will have to apply under the new regime once you have established at least 10 years of occupation.

What can the current owner do to try and defeat my claim for adverse possession?

If you are able to apply under the old regime, providing you can show both factual possession and an intention to possess you are entitled to the land and there is nothing that the current owner can do to defeat your claim.   

If you are applying under the new regime on the other hand, it is far easier for the current owner to defeat your application.  The current owner will be notified of your application and providing they submit a counter-notice to your application within the relevant time frame, you will only be able to succeed with your application if you are able to satisfy one of the three exceptions referred to above.