Adverse Possession: 2 Decades On From The Reforms

Adverse Possession is a method of acquiring title to Land and simply refers to squatting.

Put another way somebody occupying a piece of land which belongs to someone else in a certain way and at all times without permission or consent. The basic requirement for adverse possession is that a ‘squatter’ must possess the land exclusively, generally excluding all others.

Prior to the introduction of the Land Registration Act 2002, if a squatter could show adverse possession for a period of 12 years, the Land Registry would grant good title to the land.

Since the introduction of the Land Registration Act 2002, which came into force on 13 October 2003, restrictions have now been put on the opportunities to acquire land through adverse possession. The Land Registry have now put, to some extent, the control back with the land owner, meaning they are able to raise objections to these applications of adverse possession.

Further, for applications made under the Land Registration Act 2002, not only do the usual requirements of adverse possession apply when making a claim, the Land Registration Act 2002 introduced further protections for the landowner should they serve a counter notice when opposing to any application made.

The counter notice would force the squatter to rely on one of three conditions. If they cannot, their application would be rejected.

The three conditions are:

1. It would be unconscionable for the squatter not to have the land registered in their name,
2. The squatter is entitled to the land, for example it has been left to them under a will, or
3. The land to which the application relates is adjacent to land belonging to the squatter, the exact line of the boundary between the two has not previously been determined and for at least the 10-year required period ending on the date of the application, the squatter reasonably believed the land to be their own.

Milton Keynes Council v Wilsher

However, should owners fail to do their due diligence, or fail to object entirely, there is still a case to be made for adverse possession.

In this recent case, Milton Keynes Council (“Claimant”) obtained title to a farm in Milton Keynes. There were three fields forming part of that farm which adjoined a traveller’s site. Mr Wilsher, (“Defendant”) was a traveller and small livestock farmer and used the land for animal grazing.

The Claimant claimed that the Defendant was trespassing on the Land. The Defendant argued that his father obtained legal title by adverse possession for at least 12 years before 13 October 2003, and that he had succeeded to the title.

The Defendant was able to show that both he and his father exercised a good degree of control over the land:

• Witnesses confirmed that both the Defendant and his Father had used the Land to graze horses for numerous years
• Evidence was provided to establish that the Defendants father had installed a concrete bridge on the Land.
• Individuals who had done work on the Land for the Defendant or his predecessor gave evidence to the same effect.
• He installed a locked gate and erected a “Private Property” sign. Whilst this took place towards the end of the period of twelve years leading up to October 2003, the Judge found it showed a continuing approach to the Land by the Defendant, following on from his father.

As a result of the evidence set out above, the Judge held that the Defendant had satisfied the requirements for adverse possession, thus granting title to the Land.

Adverse Possession now

Whilst it is evident from the reforms and the introduction of the Land Registration Act 2002 that the requirements for adverse possession are now far more stringent, there are still many successful applications for adverse possession.

Land owners are often not aware of any activity occurring on their land, which allows it to carry on for significant periods, without consent or permission. In cases as such, the grounds for adverse possession are made out, and typically, applications still remain successful.

Should you be occupying a piece of land you do not own for a period in excess of 10/12 years, please do contact the commercial litigation team at Wilson Browne Solicitors who have a wealth of knowledge regarding adverse possession and would be happy to assist with the preparations of such application. We look forward to hearing from you!