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Protecting Registered Property From Adverse Possession

Tuesday, 30 July 2013

Owners of registered property have seen the rules on adverse possession tightened in their favour in recent years but they should still remain aware of what it is and how it occurs.

Having a property registered at the Land Registry does not prevent third parties from trying to claim it for themselves where they believe they have occupied it long enough to make a claim for adverse possession. However, the rules have changed in the last 10 years and are not as straightforward as they used to be.

The Old Adverse Possession Rules

Under English law, it used to be that a non-legal owner, a ‘squatter’, could successfully apply to be registered as the owner of a piece of land provided that they could show they had been in ‘possession’ of the land for at least 12 years.

The definition of possession is important in English law. It essentially means that the squatter must have been using the land as if he were the owner of it, to the exclusion of all others, including the genuine owner. This required proof of factual possession, intention to possess and possession without the owner’s consent. A good indicator of possession would be if the squatter had fenced-in an area of land as if it were part of his own garden, for example.

Simply using an access way over someone else’s land, or using a part of someone else’s land with the owner’s permission, for instance, would not be enough to show possession.

Adverse Possession Over Registered Land

The legal definition of possession has not changed but a new rules set out in Schedule 6 of the Land Registration Act 2002 did change how claims for adverse possession could be made over land already registered at the Land Registry.

If a piece of land is already registered then possession by a squatter for 12 years is no longer enough to claim ownership. Instead, after 10 years a squatter can make an application to the Land Registry to override the current owner’s registration and have themselves registered as the owner. At this point, the current owner will be notified and given an opportunity to oppose the application.

If the application is not opposed then the squatter will be registered as the new owner of the land.

If the application is opposed then it will be rejected unless there are legal reasons why the squatter ought to be registered as the owner. For instance, if the land in question is adjacent to the squatter’s own land, the boundary of their land is not determined and they mistakenly but reasonably believed it to be their land, then the squatter may be entitled to be registered as the owner.

Always Seek Legal Advice

It is important that property owners facing a claim for adverse possession take quick and decisive action to protect their property. The law in this area is complex so it is vital that they seek professional legal advice. Similarly, those thinking of making an adverse possession claim should also seek advice.

It is also important for owners to take action even where an adverse possession claim has been successfully defended: if the squatter remains in possession of the land for a further two years, they will then have the right to reapply and be registered as the proprietor, usually regardless of any objections.

Finally, parties should note that different rules apply to unregistered land.

For specialist advice contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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