Adverse possession (also known as ‘squatters’ rights’) allows a ‘squatter’ (S) to possess land owned by another (O), and, by remaining in possession for a specific period, dispossess O. A trespass to land can result in ownership of that land. This article discusses the significant legal and practical implications of adverse possession for both landholders and practitioners. It does not address the arguments for retaining or abolishing it. Adverse possession may appear to be an anachronism, but both the courts and Land Registry recognise it to be an area of property law that remains current and relevant.

Squatting

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Current law

The regulation of adverse possession is not straightforward. Different statutory provisions apply depending on whether the relevant land is registered or unregistered, and whether the required period of possession by S had ended before or after 13 October 2003 (when the Land Registration Act 2002 (LRA 2002) came into force).

Where land is unregistered, the Limitation Act 1980 (LA 1980) applies. Where the land is registered, and S had completed the required period of possession by 13 October 2003, both the LA 1980 and section 75 of the LRA 1925 apply. Where the land is registered and S had not completed the required period of occupation before 13 October 2003, the applicable law is sections 96-98 of, and schedule 6 to, the LRA 2002.

The regime under the LA 1980 is conceptually easier; under section 15, O cannot bring an action to recover land after 12 years from the date on which the cause of action accrued. Perhaps more significantly, section 17 provides that on expiry of the 12-year period, O’s title is extinguished.

Section 75 of the LRA 1925 applies the LA 1980 to registered land, but only where S had completed 12 years’ possession before 13 October 2003. Where the land is registered, and S had not completed 12 years’ possession before 13 October 2003, the LRA 2002 applies. The most important change made by the LRA 2002 is that adverse possession no longer extinguishes O’s title. After 10 years, S may apply to Land Registry to be registered as proprietor. Schedule 6 to the LRA 2002 will then apply.

Notification

Schedule 6, paragraph 2 requires the registrar to notify the registered proprietor, and any registered chargee, of the application. Once notified, the registered proprietor / chargee has 65 business days to oppose the application and/or serve a counter notice using form NAP, requiring the application to be decided under schedule 6, paragraph 5. Paragraph 5 limits significantly the circumstances in which S can be registered as the new proprietor.  

Only if a recipient of the notice does not reply to it, or they reply but do not oppose the application, is S entitled to be registered as proprietor. If S’s application is opposed, and is rejected (as is likely given the scope of paragraph 5), S may only apply again for registration on completion of two more years’ adverse possession from the date of the rejection (schedule 6, paragraph 6).

Significantly, S may not apply again if they are defending possession proceedings, have been subject to judgment for possession or have been evicted pursuant to such a judgment (paragraph 6). Where land is registered, and S completes the requisite period of possession after 13 October 2013ss, the obstacles between S and successful registration as proprietor are considerable, though not insurmountable.

A further statutory consideration is section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) (effective from 1 September 2012). It is now a criminal offence for a person to live or intend for any period to live in a residential building as a trespasser, where that person entered it as a trespasser and knows or ought to know that they are a trespasser. The effect of this on the operation of adverse possession is discussed below.

Common law principles

While the statutory regimes and periods of possession differ between registered and unregistered land, and vary according to when the requisite period of possession ended, the common law principles of what constitutes adverse possession apply equally to registered and unregistered land, and to the LA 1980 and LRA 2002 regimes.

These principles were recently restated in Dyer v Terry [2013] EWHC 209 (Ch). The High Court (hearing the appeal from the Adjudicator to the Land Registry) cited Mr Justice Slade’s judgment in Powell v McFarlane (1979) 38 P&CR 452 at 470-472, as approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. S must show “that he has both factual possession and the requisite intention to possess … although proof of each will often be made out from the same facts”.

In defining ‘factual possession’, the court referred to Mr Justice Slade’s dicta in Powell that “factual possession requires an appropriate degree of physical control”, and that whether such control exists depends on “the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed … what must be shown … is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

Powell also sets out the requisite intention. Mr Justice Slade stated that it “involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner … so far as is reasonably practicable” (at 472).

Common scenarios

Practitioners’ experiences of typical adverse possession cases vary. Cases may involve small pieces of nondescript ‘forgotten’ land, which benefit no party other than S (for example, the extension of a residential garden onto wasteland). Adverse possession can also occur when boundaries are moved without challenge, resulting in the eventual inclusion of the ‘stolen’ land into S’s title. Less common, but more likely to be challenged, are cases involving land of significant value.

Sufficient control of land

Dyer illustrates some (but not all) of the situations in which adverse possession can commonly arise. The case concerned six areas of land, which the claimant had used variously as garden land, as storage for vehicles, tools and building materials, and for access purposes. Both at Land Registry adjudication and in the High Court, the applicants succeeded in respect of some areas, but not others.

Points which arise from the decision as to whether particular acts constitute sufficient control include the following.

  • Where the use to which land can be put is limited (such as garden land), use of it for that purpose, even if done casually, may be sufficient.
  • Activity on land other than the land to which the application relates can also be relevant to whether there is sufficient control. Part of the claim related to a building which was situated partly on land in respect of which the claim had been made, and partly elsewhere.
  • The cumulative effect of transient activities (such as temporary storage) can be evidence of sufficient control, even if the individual acts, if treated as ‘self-standing’, would not have been sufficient.

Residential property

Smart v London Borough of Lambeth [2013] EWCA Civ 1375 concerned residential property. Factual possession for the requisite period was not disputed. The question was whether possession had been with consent. In his judgment in Smart, Lord Justice Floyd (citing Lord Browne-Wilkinson in JA Pye) stated unequivocally that “there is no dispute that possession with the consent of the owner is not adverse [possession]” (at [32]).

Lambeth London Borough Council had acquired a property which squatters subsequently occupied. In order to implement a scheme to access housing association grants, the council allowed the squatters to remain in occupation. After a period of negotiation, it issued a licence agreement which some of the squatters, but not the claimant, signed. The claimant argued that the court should infer a licence of limited duration, which had expired. The Court of Appeal rejected this.

It held that, to establish consent, there needed to be some overt act by the landowner, or some demonstrable circumstances from which consent could be implied, but that it was irrelevant whether the user was aware of the overt act or demonstrable circumstance. It was, however, necessary to establish that a reasonable person would have concluded that the possession was with the permission of the owner. It concluded that in this case, the correct inference was that the licence (whether express or implied) was to continue until revoked.

While the council’s licence was detailed in many respects, it does not appear to have dealt adequately with its duration. Nor do sufficient steps appear to have been taken to ensure that all parties who were in occupation were signatories to the agreement.

Effect of LASPOA 2012

Best v The Chief Land Registrar [2014] EWHC 1370 (Admin) addresses the effect of section 144 of the LASPOA 2012 on adverse possession. Mr Best occupied a house (35 Church Road, Newbury Park) since 1997. He knew that the proprietor of 35 Church Road (which was empty and vandalised) had died, and that her son’s whereabouts were unknown.  Between 1997 and 2012, Mr Best carried out considerable works to the property with the intention of living there himself, which he did from 2012. In 2012, he also applied to be registered as the proprietor.

Land Registry rejected his application, on the basis that since 1 September 2012, the occupation on which he based his claim had been a criminal offence under section 144 of the LASPOA 2012. The High Court, holding that section 144 did not affect adverse possession, quashed the decision of the Chief Land Registrar, and ordered that Mr Best’s application should proceed to the next stage under schedule 6 to the LRA 2002.

The court held that, where the consent of the owner would have provided a defence to the conviction (as it would have done here), there was no sensible reason to distinguish between tortious and criminal acts. Accordingly, where it appears to practitioners that, when the possession on which a claim for adverse possession is based may fall within the (quite limited) scope of section 144, this is not, in itself, a reason why the application should fail.

Concerns and pitfalls for the adverse possessor

  1. It is often difficult to identify, and advise a potential claimant on, whether particular acts “constitute a sufficient degree of physical control”. Richard Millett QC in Dyer (at [10]) warned against “pointing to any particular case and using it as transposable authority”. He cited Red House Farms (Thorndon) Ltd v Catchpole (1977) 2 EGLR 85 and Chapman v Godinn Properties Ltd [2005] EWCA Civ 941, in which the Court of Appeal held that the seasonal use of marshland for shooting and the occasional mowing and cutting back of shrubs were, respectively, evidence of an appropriate degree of exclusive physical control. In each case, the nature of the land was such that these acts were all an owner or person in possession could be expected to do. By contrast, he cited Ellett-Brown v Tallishire Ltd (29 March 1990, unreported) in which Lord Justice Lloyd had held that planting thousands of daffodils “to adorn and beautify the disputed land” had not been a sufficiently unequivocal act of possession.
  2. A danger for S under schedule 6 to the LRA 2002, but not under the LA 1980 regime, is vacating possession before applying for registration. Under the LA 1980, the extinguishment of the owner’s title meant that, having possessed for 12 years, S could vacate the property without prejudicing their claim. This does not apply under schedule 6 to the LRA 2002; paragraph 1 states that the period of 10 or more years’ possession must (subject to limited exceptions in paragraph 2) end “on the date of the application”.

Concerns and pitfalls for the landowner

  1. Adverse possession depends upon O’s inactivity. O can take relatively easy and inexpensive steps to prevent a claim arising and/or succeeding. O has either 10 or 12 years in which to commence possession proceedings. Should this seem unattractive, the grant of a licence to occupy (see Smart above), which need not be contractual in nature (BP Properties v Buckler (1988) 55 P7 CR 337) and can therefore be unilateral, should, if carefully drafted, substantially reduce the risk of a successful claim. JA Pye is, however, a potent reminder of how allowing S to remain in possession after a licence has expired can have disastrous consequences for O.
  2. The likelihood of a successful application is significantly reduced where land is registered. Owners of unregistered land should therefore be encouraged to apply voluntarily for first registration. Land Registry fees for voluntary first registration are reduced by 25%. The process of examining the deeds and accompanying plans in preparation for an application may bring to the owner’s attention the possibility of a claim for adverse possession arising.
  3. The procedure under schedule 6 to the LRA 2002 by which Land Registry must notify registered proprietors / chargees of S’s application relies upon Land Registry holding up-to-date addresses for service of the registered proprietor / chargee. Registered proprietors may have up to three addresses for service; one could be their solicitor’s address, so that O and O’s adviser become aware of S’s claim simultaneously.

Land Registry procedure

For the relevant procedures, practitioners are referred to the most recent (October and June 2014) editions of Land Registry Practice Guides 4 (Adverse possession registered land) and 5 (Adverse possession of (1) unregistered land, and (2) registered land where the right to be registered arose before 13 October 2003). Both guides summarise (at section 3: ‘Adverse possession: the essentials’) the applicable law, and give detailed guidance on the correct procedure.

The forms for applications differ. For registered land, form ADV1 must be used. For registered land subject to section 75, LRA 1925, form AP1 applies. Where land is unregistered, forms FR1 and DL should be used.

In all cases, practitioners must supply supporting evidence in the form of one or more statements of truth or statutory declarations.  Statements of truth may, but need not be, on Form ST1. The guides advise that the statements be in the declarant’s own words, rather than in “language copied from precedent books”. The format of form ST1 is a useful guide to ensuring, where possible, that the supporting evidence is complete.  

Practitioners should also take care when sending original documents to Land Registry practice guide 4 (updated in October 2014) states that, in respect of applications to which it relates, Land Registry only requires certified copies of deeds and documents, and that after scanning, the documents received will be destroyed (including any originals). Practice guide 5 is different. For applications to which it relates, practitioners must supply a certified copy of the statutory declaration or statement of truth if they want the original returned; automatic destruction of original documents is not referred to.

Successfully applying for registration based on adverse possession is a demanding and uncertain process. An inattentive owner still risks becoming a victim of adverse possession. Recent cases show that the doctrine is very much alive, and will continue to create uncertainty for the foreseeable future.