Expert advice from specialist adverse possession claims Solicitors
What we offer you
Genuine expertise. This is an area of law which is fraught with difficulty, and in which many firms of Solicitors offer assistance only as part of their general conveyancing services. Few of these lawyers deal with these cases on anything other than a very infrequent basis. What we offer our clients is genuine expertise to ensure that your applications for registration of land have the highest possible chance of success.
If the lawyers you are thinking of instructing do not deal with in excess of 100 adverse possession applications every year, we would recommend you speak to us on a no obligation basis so we can explain to you how we can help. Our experience shows that many claims are rejected by the Land Registry as a result of inadequate preparation of supporting evidence and misunderstanding as to the legal basis of the application. We are able to maximise the prospects of you achieving legal ownership of the land.
We represent clients nationwide, and in most cases face to face or site meetings are not required prior to submission of successful applications. Naturally in individual cases where our clients require a site visit and meeting this can be arranged.
Our Top 10 Guide to Adverse Possession
Adverse Possession 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. If an individual occupies the land in a certain way for a number of years, which is either 10 or 12 years depending on the legal circumstances, then it is possible to make an application for the land to legally become theirs.
An individual must show they have an intention to possess the land to which they are applying for registration of based on Adverse Possession. To show an intention to possess, an individual must prove they have a sufficient degree of custody and control over land as well as an intention to exercise such custody and control. It is not enough for an applicant to simply use land for the required time period. The applicant must show they have gone beyond this and must evidence that they have treated the land as if it were their own.
Adverse Possession will begin as soon as an individual takes over the full and exclusive occupation and control of the land in question without permission or consent. It is important to remember that the land must have been occupied for 12 years if the land is unregistered, or 10 years if the land is registered prior to any application being made. An applicant will need to prove this date.
The process for Adverse Possession will depend on whether the land is registered or unregistered and when occupation began. There are three regimes in which an application for registration based on Adverse Possession can be made. In different types of applications, the witness evidence required may not be the same. A full witness statement will need to be produced on behalf of the person making the application which addresses the main requirements for adverse possession, and addresses the technical legal issues. The application is initially usually made to the Land Registry but if defended will usually be referred up to the First Tier Property Tribunal or to a Court. To ensure an applicant is not at risk of paying the landowners’ costs, legal advice is highly recommended.
If the land an individual wishes to claim adverse possession of is unregistered, they must have occupied the land for 12 years prior to making any application. If the land the individual wishes to make an application for is registered and the individual’s occupation began before 13th October 1991, then the individual will need to show they have been in adverse possession of the land for 12 years. If the individual cannot satisfy those 2 requirements and has occupied the land for a period of time since 13th October 2003, then the individual will usually only need to show they have been in adverse possession of the land for 10 years. As soon as the individual has reached the required time period of occupation, an application can be made. After this time, an application can usually be made but it is worth remembering that it is best to make the application as soon as possible.
Even if you satisfy these time limits there are often technical defences available to a landowner; and legal analysis is crucial.
The time periods of either 10 or 12 years, can in certain circumstances be carried forward between squatters whether or not they have been completed. For example, if your predecessor in title occupied the land for five years and you then purchased a property from them and have occupied the squatted land adversely for a further five years, you can use the evidence of occupation and exclusive possession of your predecessor in title to assist you in meeting the required time period of 10 years. A statement would usually be needed from the predecessor in title to help with your application and the detail required in the statement is very important. We very often see houses purchased with the hope that the purchaser will be able to gain registration of an additional bit of unregistered land not sold with the house, but where the vendor’s statutory declaration provided at the time of sale is wholly ineffective. We recommend obtaining expert legal advice before you purchase.
A prescriptive easement is your right to use land belonging to someone else for certain purposes for instance as an access route or for car parking having done so in a certain way usually for the past 20 years. This differs to adverse possession as for adverse possession you must show that you have had an intention to possess the land exclusively and treat it as your own and then, if successful on an application the land would become yours. With a prescriptive easement, you will not become the legal owner of the land; you will simply just have a right to use it for a specific purpose. The right attaches to your land but you never own the land over which the right exists.
If you are claiming adverse possession of a piece of land, it is not an absolute requirement that you have any documentation. Documentation will of course help you a huge amount, and the type of documentation as evidence the Land Registry may look for are for invoices for any money spent maintaining or fencing the land, proof of possession and use of the land and the date occupation started (e.g. photographs) or letters sent or received. If you are making an application for registration of residential property, you will be expected to provide documentary evidence showing your full period of occupation. Historic photographs and evidence can be very helpful.
An application fee will be payable to the Land Registry with any Application for Adverse Possession. This will range from £70 to £130 depending on whether the land is registered or unregistered. The legal fees for preparation of witness statements, and of the application itself are payable in addition. There may also be a fee to obtain plans and title documents, but this is usually minimal.
Possessory title is granted where the land owner acquires the land by registration following adverse possession or where they cannot produce documentary evidence of title for some reason. This class of title is normal and expected when applying for registration of unregistered land based on adverse possession, in fact the Land Registry have no basis to grant anything other than possessory title.
Possessory title simply means that the land may be subject to existing restrictive covenants or rights however, as the Land Registry do not have any deeds for the land, they are not aware of what, if any, exist.
What is adverse possession?
Obtaining registration in your name of land based on “adverse possession” is the process by which someone who is not the legal owner of a piece of land can have land transferred to them following possession and exclusive occupation of it for a specified period of time. The actual period of time required varies, dependent upon whether the land is registered at the Land Registry, or unregistered land, and even dependent upon the date when the land was registered in the past. Other time periods may apply dependent upon whether the land is held within a Trust, or was at some point owned by a Limited Company.
What do you need to prove?
Unfortunately, it is not sufficient to merely show that the land has been occupied. And it certainly isn’t sufficient just to find unregistered land. That doesn’t mean the land isn’t owned by anyone, it just means the land is not registered.
There needs to be exclusive occupation, with an intention to exclude anyone else other than your visitors from the land. There also needs to be use of the land to an extent where it the same type of use as if you actually owned it. So for instance, merely caring for land by mowing or tidying it may not be sufficient. Grazing animals on the land may not be enough. The occupier of the land needs to show a high degree of physical control over the land, but exactly what is sufficient in law depends on the circumstances, for instance the particular type and nature of the land in question, and how that type of land is usually used or enjoyed. For that reason, the evidence in support of individual applications needs to be very carefully drafted to comply with the requirements of the Land Registry and the Courts so that our clients can show they have dealt with the land in the same way as someone who legally owns it might be expected to deal with it. We understand the best way to present the evidence.
It wasn’t a straight forward process, but I received fantastic advice, couldn’t have done it without you”. Mr Clive Smith 31.01.18
“A big thank you to Chloe for preparing a well written Tribunal Case Summary for me. You put my mind at ease from the initial phone call and I knew you had the expertise to deal with the matter of adverse possession for me.” 17.01.18
“We were initially worried when we discovered the land was not ours but this worry was off set by the advice that was received; it put our minds at rest. Wilson Browne are experts in adverse possession they were professional and courteous and their charges were transparent.” Mr Mark Poskitt 05.02.18
“Without any doubt the team were experts who put my mind at rest straightaway and made me feel confident in the process. My questions were answered straightaway and I was very pleased with the outcome.” Mrs Dover 06.02.18.
The different types of application
There are a number of different legal regimes in operation in England and Wales relating to registration of land based upon adverse possession. Prior to the coming into force of the Land Registration Act 2002, a squatter could potentially acquire the right to be registered if they had adversely possessed land for a minimum of 12 years. The Land Registration Act 2002 created a new regime of 10 years, but this only applies to registered land. There is a new potential requirement which can apply to show that throughout the 10 year period the adverse possession was with a reasonable belief that the person in adverse possession believed they owned the land. The idea of the new legislation was to prevent someone squatting in land they knew they did not own and gaining ownership. But the requirement to prove a reasonable belief you own the land only applies if the landowner serves a specific notice on you after you have made your application.
However, the matter is made more complicated by the fact that transitional procedures are in place relating to registered land where adverse possession was taking place prior to the Land Registration Act coming into effect in October 2003, and further different provisions apply where land was only registered for the first time at a stage where someone had already had adverse possession of the land for a period of time sufficient to have made a successful application, but did not. For all of these reasons, we can get your application in the right form, and assess your claim to ensure that it is made properly. Different time scales may apply to land owned within a trust, or by the Crown, or where the land was owned by a developer years ago who has since been dissolved or liquidated.
A crucial pre-condition of a successful application is to prove that the adverse possession has been without the owner’s consent. When the concept of “adverse possession” is considered, the “adverse” bit relates to the possession being contrary to (or adverse) to the rights of the true legal owner. Put another way, any applicant needs to show that they have been squatting on the land without the owner’s consent, as if the occupation is with consent or licence it is not adverse. Particular difficulties might arise in relation to discussions that have been held with the legal owner, or where there might have been correspondence suggesting a possible purchase or licence of the land. Identifying these issues in the correct way is important to ensure an application succeeds. We understand the technical issues, and we can ensure that your application is not prejudiced by reference to historic discussions and proposals.
Use of land for access to and from other owned land is on occasions sufficient to support a successful application for registration, but there are particular difficulties that might arise, as a result of the overlap between the law relating to adverse possession and the law relating to rights of way.
Screening your application prior to submission to the Land Registry
As specialist lawyers in this area we are regularly met with clients who come to us after the Land Registry has rejected their application (often where the application was prepared by non-specialists). We would advise you to obtain specialist legal advice prior to submission of any adverse possession applications to the Land Registry or making contact with the landowners, so that the application can be properly screened and assessed for its prospects of success, rather than having to be amended after it has been submitted in the wrong form, or with evidence in a prejudicial form. We can advise you on whether your application is likely to succeed, and at a preliminary stage advise on whether you should make an application yourself to have land registered in your name.
The First Tier Property Tribunal
Contested applications are referred by the Land Registry to this Tribunal, who hold a hearing to decide the outcome. The procedural rules are complex and time scales must be complied with. We know how to pursue and defend applications before the Tribunal, and know when to negotiate and when not to.
Timing is crucial; it is important not to enter into any communication with a land owner without ensuring that the correspondence might not damage any application you might make. We can advise you on exactly when your application ought to be made; in some circumstances it is of huge tactical and legal importance!
If you are thinking about making an adverse possession type claim, we can assist. However, there are deadlines that apply and it is important to ensure that you receive expert advice at an early stage. As specialists in these cases we act for clients nationwide to resolve their legal difficulties and to increase their prospects of success. Call us on 0800 088 6004 for more information