Adverse Possession and the importance of checking the Plan
Adverse possession is the legal principle that allows a person who does not legally own land to become the legal owner, if certain criteria have been satisfied.
The term is often referred to as ‘squatter’s rights’ which implies the occupier is fully aware that the land they are occupying does not legally belong to them. However, more frequently we see cases where a person only realises that part of the land they have been occupying is outside their legal title when they come to sell, transfer, mortgage or lease their property. At this point, there is often a time and/or financial pressure to complete the transaction.
It is therefore, important to check the title plan, lease plan or transfer plan carefully when first acquiring the property, to ensure that the plan includes all of the land you intend to purchase or lease.
Checking the plan is particularly important if you are purchasing or leasing land/ a property out of a larger parcel of land/ development, thereby splitting the title to create a new freehold or leasehold title. If an error with the plan is noticed at this stage, then usually the plan, to be attached to the disposing document (e.g. the Transfer Deed or Lease), can be amended ahead of completion therefore, avoiding an issue in the future and a potential claim for adverse possession.
Hindsight is a wonderful thing, and if it does transpire that part of the land you have been occupying is outside your legal title, then we may be able to assist you with an application for adverse possession. The starting point for making an application to HM Land Registry would require the satisfaction of 3 essentials:-
- Factual Possession
In Powell v McFarlane, (1977) 38 P & CR 452, Slade J said:- “Factual possession signifies an appropriate degree of physical control”. In the Land Registry Practice Guide it states:- “Where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.”
- The intention to possess
Again, to quote Powell v McFarlane, (1977) 38 P & CR 452, Slade J and approved by House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30):- “the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor…”
- Possession without the owner’s consent or permission
In Buckinghamshire County Council v Moran, ([1990] Ch 623, 636) Slade LJ stated that:- “Possession is never ‘adverse’ within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner of the paper title”
In additional to the above, the possession must be continuous for a period of 12 years where the land is unregistered or 10 years where the land is registered, assuming the right has been acquired after 13 October 2003. Prior to this date an occupier could acquire the right to be the registered proprietor if they had been in adverse possession of the land for a minimum of 12 years.
If the above requirements have been, or are potentially, satisfied then we can prepare the appropriate Land Registry application form, assist you with the preparation of a Statement of Truth and advise what evidence may be required to support the application. Whilst we cannot guarantee a successful outcome at the Land Registry, we can work with you to give the best chance at achieving a positive result.
If you are intending to sell your property, it is advisable to discuss matters generally with us, so that we can consider with you the documentation that will be required during the course of the transaction and resolve any difficult issues before the property is marketed for sale.