Put simply, adverse possession is the route by which a person who is not the legal owner of the land, can become the legal owner by possessing the land for long enough.
The person claiming possession must establish that they have been in uninterrupted factual possession of the land in question, for the relevant time. During that period they must have intended to possess the land.
Decisions of the courts over many years have refined what “factual possession” means, what “uninterrupted” means, and what amounts to “intention”. One blog (or many blogs!) cannot cover all the detail. In brief summary, possession tends to amount to doing all the things an owner would have done. For a piece of land, this includes things like maintaining it, paving it, or putting a fence around it.
How long is long enough?
This depends on when the period of possession started, and on whether it is registered land. For registered land, the period is ten years.
For unregistered land, or registered land where possession was for at least 12 years before October 2003 it’s twelve years.
In most cases of adverse possession, the factual possession itself will demonstrate the required intention.
A common type of adverse possession claim is where an owner has used additional land adjacent to their own land over many years, treating it as their own, without objection from anybody, cutting the grass or re-surfacing it, and even putting a wall or fence around it. However, there are many diverse examples. Just a few are below:
- Central Midlands Estates Ltd v Leicester Dyers Ltd  only parking cars on the disputed land was not enough to establish either factual possession or an intention to possess. Something extra was needed, such as the enclosure of the disputed land and/or the erection of car parking signs.
- Ofulue & Anor v Bossert  The mistaken belief by occupiers of land that they were entitled to a tenancy didn’t mean that they lacked the intention to possess that was necessary to establish adverse possession
- The Port of London Authority v Ashmore  it might be possible to acquire title by adverse possession to part of an unregistered foreshore and river bed on which a vessel rested at low water.
- Smith, R (on the application of) v The Land Registry (Peterborough Office)  the court found it difficult to envisage any circumstances in which adverse possession could be established over a public highway without contravening the Highways Act 1980
How do you claim?
The process involves an application for possessory title to the Land Registry, which must be supported by good evidence of the possession over the required time period. The Land Registry usually send a surveyor to inspect the land in question. The Land Registry will consider the merits of the application and whether the applicant has established their occupation for the required time. The process is slightly different for registered land where there are not 12 years of possession by October 2003. The Land Registry’s guide for registered land can be found here. For unregistered land, neighbouring landowners and/or the legal owners of the Land (if known) will be notified of the application and they have a chance to object. If objections are raised, there is usually a period for the parties to try to resolve things between themselves. If no agreement is reached, the next step is the First-Tier Tribunal (Property Chamber), followed by the courts.
You should seek legal advice if you want to apply for adverse possession. Sarah Coates-Madden can advise on the merits of your application, put together your application and the supporting evidence, and take you through the process.