Claims for adverse possession or prescriptive easements can come as a great shock to property owners. Understanding the risks and taking appropriate steps to protect your property from these types of claims is an important first step for owners of unregistered land.
As might be expected, adverse possession and prescriptive easement claims have always been a potent source of disputes. If things get to this stage it is important to seek immediate legal advice.
The Basics of Adverse Possession of Unregistered Land
Adverse possession is a mechanism by which a squatter or trespasser can acquire the legal title in unregistered land, displacing the previous owner. This applies to all types of land; be it a separate plot or a stretch of land adjoining a property. Since the Land Registration Act 2002 came into force, different rules have applied to registered land.
Adverse possession of unregistered land involves having factual possession of the land, the intention of possessing it and possession without the consent of the owner for a period of 12 continuous years prior to the date of claim.
‘Factual possession’ was defined by Slade J in Powell v McFarlane , effectively stating that it ‘signifies an appropriate degree of control’ and that both the legal owner and squatter ‘cannot both be in possession of the land at the same time’. The test was whether or not the squatter had been dealing with the land ‘as an occupying owner might have been expected to deal with it and that no one else has done so.’
Intention to Possess
The squatter needs ‘not an intention to own or even an intention to acquire ownership but an intention to possess’. Hoffman J put forward this definition in Buckingham County Council v Moran , which was later approved by the House of Lords. Whilst ‘the intention to possess will be frequently deduced from the facts making up factual possession’, Slade J in Powel v McFarlane explained that this may not always be the case, and compelling evidence should be required to show the trespassers intention of excluding the owner from the land.
Land cannot be adversely possessed if the owner has given consent, which can in some circumstances, be implied. If the land is being negotiated with the owner, an inference can be drawn that the owner permits the squatter to remain, and where permission has been given in the past, it is possible for this permission to continue indefinitely, unless expressly withdrawn.
The 12 year requirement is found in s.15(1) of the Limitation Act 1980, which prevents any action being brought to recover land after 12 years from which the right of action was accrued; which is the start of the adverse possession period.
The 12 year limitation period applies only to unregistered land, or registered land where the right to register was acquired before 13th October 2003. As mentioned above, the Land Registration Act 2002 set out new requirements for registered land but it also provided transitional provisions for land that had been occupied for the requisite period prior to registration.
Similar to adverse possession are prescriptive easements. These are rights which are acquired through exercise over a long period of time, long enough that the law would presume them to be lawfully granted.
The criteria for a prescriptive easement is similar to that of adverse possession; the user must exercise without force, secrecy and permission, continuously, and either be by a freehold owner or on their behalf, against another freehold owner. The right being exercised must be one which could be lawfully granted, and this must continue for at least 20 years.
Prescriptive easements are just rights over land, as opposed to ownership of the land itself. The acquired rights should be entered into the registries of both the benefitting and the burdened land, to make sure the right is not lost in the future.
If a claim has already been made against your property or you would like specialist advice on how to protect your property, contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.