Adverse possession

Adverse possession is the occupation of land that belongs to someone else without permission.

Under certain circumstances, adverse possession can allow the person in possession to acquire the right to be registered as the owner of the land. The reason for this is that when unregistered land is purchased, it can be difficult to establish whether the person that is selling it, has legal title to it, and so has the right to sell it, furthermore it can be difficult to determine whether the person that sold it to them had the right to sell it, and so on and so on.

The ‘twelve year rule’ means that if a person has been in possession of unregistered land for 12 years, then they can acquire legal title to the land. This means that subsequent purchasers can have certainty about their title. The obligation on owners is to check their land at least every 12 years.

This 'rule' can provide certainty of title, and clarity, for example where a boundary has existed in the wrong location for a long period of time. However, it can also be taken advantage of by ‘squatters’ giving them the opportunity to acquire apparently vacant property.

Before the Land Registration Act 2002 came into force, squatters could acquire the right to be registered as the owner of registered land if they had been in adverse possession of the land for 12 years.

However, the justification for this for registered land was questionable, and so changes introduced by the Land Registration Act made it easier for the proprietor of registered land to prevent a successful application for adverse possession.

The new procedure is outlined below:

• After 10 years, the squatter can apply to be registered as proprietor of the land.
• The registered proprietor is notified of the application.
• If the application is not opposed, the squatter is registered as proprietor.
• If the application is opposed, it is rejected. There are exceptions to this, for example if the squatter is an adjacent land owner under and mistakenly believe they are the owner of the land that they are in adverse possession of. See Land registry, Practice Guide 4 – Adverse possession of registered land for more information.

If the application is rejected but the squatter remains in adverse possession for two more years, they may then be able to reapply and will be registered as the owner whether or not anyone opposes the application. This gives the registered owner 2 years to begin proceedings to have the squatter removed from the land.

NB Since September 1st 2012 squatting in residential premises is a criminal offence punishable by a prison sentence of up to six months or a fine of up to £5,000. This is as a result of Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 coming into force. Commercial premises owners will not be able to rely upon this new legislation if faced with squatters in their premises. They will therefore have to continue to rely upon existing civil procedures to evict squatters unless they commit a criminal offence.

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In the case of Heaney v Kirkby, an elderly woman established ownership of a grass verge outside her home which she had tended as part of her garden for many years.

After purchasing her home in 1999, the woman set about beautifying the verge and installing two car parking spaces. She imported 12 tons of topsoil, seeded the verge with grass and put in place a coping stone bearing the name of her home. In 2012, however, her neighbour succeeded in obtaining paper title to the verge, which had never previously been registered to any owner. He purported to forbid her to make any further use of it, whether for parking or otherwise.

She successfully argued before the First-Tier and Upper Tribunals that she had, as of right, been in unchallenged possession of the verge for years and that its registered title should therefore be transferred to her. In rejecting her neighbour’s challenge to that result, the Court of Appeal found that she had been in adverse possession of the verge for the required 12-year period and was entitled to call it her own.

[edit] Find out more

[edit] Related articles on Designing Buildings Wiki

• Commonhold.
• Land registry.
• Leasehold.
• Squatters.
• Trespass.

[edit] External references

• Land registry, Practice Guide 4 – Adverse possession of registered land.
• Rex Cowell Solicitors - Heaney v Kirkby