Adverse Possession of Land: What Landowners and Applicants need to know

23rd December 2024 | Caroline Vernon | Residential Real Estate, Possession of Land, Adverse Possession

What is adverse possession?

Adverse possession is a method of acquiring legal title to land by occupying it without the permission of the legal owner.

It is also used by landowners seeking to remedy their boundaries where legal title does not match up with the land occupied. This is particularly common with rural properties subject to historic conveyances where the plan attached to a conveyance was not clear. It is also relevant when a landowner, builds a physical boundary which extends into their neighbour’s property. If that boundary remains in place for many years, the party who erected the boundary may be able to extend their title to include the additional land now enclosed, thus depriving their neighbour of land which they may have purchased.

The exact criteria that must be fulfilled in order to succeed in such an application is set out below:

Key legal requirements:

HM Land Registry rules confirm the following criteria must be fulfilled in order to make an application.

1. Length of occupation – the applicant must be in occupation of the land for at least 10 years in the case of registered land (at the Land Registry), or 12 years for unregistered land.
2. Factual and exclusive possession – the applicant must have exclusive physical control of the land. Case law has confirmed that the applicant may be expected to demonstrate a reasonable belief that they own the land (Rowlands v Bishop [2023]). This requirement can be met by evidence of acts of maintenance on the land and showing that the land is physically enclosed.
3. Intention to possess the land without the landowner’s consent – for possession to be truly ‘adverse’, it must be without the true legal owner’s consent. It is not possible to be in adverse possession if consent to occupy the land (such as by way of a licence or tenancy, orally or in writing), has been granted by the landowner (Healey v Fraine [2023]).

Additional protection for registered landowners:

The Land Registration Act 2002 provides further protection to landowners. Landowners will be notified when an application for adverse possession of their land has been made and given the opportunity to serve a counter-notice in response to it. Assuming the counter-notice opposes the application, the application will only proceed if the applicant is able to rely on one of three conditions:

1. Estoppel – the applicant would need to show that it would be “unconscionable” for the registered owner to dispossess them. For example, the registered owner encouraged or allowed the applicant to believe they owned the land.
2. Other rights to the land – the applicant can show they are entitled to be registered as the owner of land for some other reason (under a Will, for example).
3. Reasonable mistake as to the boundary – the applicant reasonably believed they owned the subject land, and owns land adjacent to it. This is the most common condition relied upon.

Adverse possession and boundaries:

A more appropriate application may be for the boundary to be determined or for a boundary agreement to be entered into with a neighbour, depending on the size of the land, whether it falls within the registered title or not, and whether there is a dispute as to ownership.

Title plans of all registered titles show the general position under Section 60(1) of the Land Registration Act 2002. In order to plot the exact line of the boundary on the ground, a specialist boundary surveyor should be instructed.

Legal presumptions exist in relation to the ownership of particular boundaries such as hedges and ditches, roadways, and riverbeds. However, these are all presumptions which can be rebutted by contrary evidence.

Practical Tips for Landowners:

• If a landowner discovers that someone has encroached on their land without permission, this amounts to a legal trespass. The landowner can either take steps to remove them or formalise their occupation by giving permission (which means their occupation can no longer be ‘adverse’). Injunction proceedings may be required in the most severe cases of trespass.
• Landowners, especially those who own large parcels of land that are not always monitored or maintained, should inspect their sites regularly to ensure the boundaries are where they should be and there are no encroachments by neighbours. Records of inspections should be kept as these can prove to be useful evidence in the event of a dispute.
• Landowners should ensure their addresses are kept up to date at HM Land Registry. The Land Registry will notify landowners if their land is subject to a claim for adverse possession in writing and give the owner a short period of time to respond. Failure to respond in time may result in the occupier’s application being successful. Legal advice should be obtained in order to respond to an application, with registered landowners making use of the counter-notice provisions, if possible.
• In addition, landowners can register a property alert against the land and/or adjoining land via HM Land Registry. This way, when a party registers some form of notice against that land, landowners will be notified automatically via email, and thus given the opportunity to take action in response.

Adverse possession may seem daunting, but understanding the rules and safeguards can help landowners and applicants navigate the process effectively. By staying vigilant and seeking the right advice, you can protect your property rights or pursue a claim where justified.

To find out more, contact Caroline Vernon.