Adverse Possession

Adverse Possession

Selling your property is never as straightforward as you would like to think. There can be a number of issues that need to be resolved before the property can be sold to a buyer. One of these is adverse possession.

What is Adverse Possession?

In certain circumstances a person may acquire land belonging to someone else, the true legal owner. Adverse possession is the process by which a person who does not own the land can become its legal owner by showing that he has possessed that land for a specified period of time.

Adverse possession is based on the concept of the limitations of actions. Where a cause of action arises, litigation must commence within a certain time frame, or the owner may lose the right to sue the squatter and the latter obtains title by default.

Whether your land is “registered” or “unregistered”, you may find that you are indeed the “squatter” on part of it, and you will need to provide evidence to support your case should you wish to acquire the land.

The effect of establishing adverse possession is to defeat the true owner of the land and you, as a squatter, would become its new legal owner. However, you would become subject to any third party rights on the land, such as easements.

How is this relevant to me?

Adverse possession can interfere with the process of selling your land. This is particularly so where discrepancies between the boundaries shown by the legal title and the physical land that the seller occupies are only discovered at the eleventh hour. Where this is the case, a separate application for adverse possession will need to be made as swiftly as possible in order to avoid deterring the buyer from purchasing your property, especially where there are other properties further down the chain.

Additionally, the sale contract will need to be altered so that it states that the seller will not deduce title, nor give any title guarantee in respect of the land to which he does not have legal title.

It is difficult to precisely mark the borders of your land from old deeds or Land Registry plans. The "general boundaries rule" means that one cannot rely on such documents to define a boundary. You may consider hiring a qualified surveyor for this purpose.

If you are true legal owners for the land in question, a physical inspection of the property may be necessary to reveal if a squatter is in occupation or if a neighbour appears to be in the process of acquiring rights by adverse possession.

The property I own is unregistered. How do I go about acquiring title to the land?

To obtain title by adverse possession, the squatter must show both that he had factual possession of the land, but also that he intended to possess it for that period as an occupying owner might have been expected to deal with it, excluding the world at large including the legal owner. A squatter can demonstrate this in a number of ways, for instance erecting a fence around the area. What is sufficient will depend on the circumstances, the nature of the land, the way that it has been used and the degree of physical control that the squatter has exercised. Both the factual possession and intention to possess must have existed for a period of at least twelve years. However, this period may be extended or stayed in certain circumstances, for example if the legal owner can be identified or where he has given permission or a licence to use the land in the past.

How is it different if my land is registered?

With registered land, the limitation period is ten years. However, the legal process is more stringent than with unregistered land. Notice of the application must be given to the true legal owner as well as certain others. Any recipient of this notice has the right to raise an objection to the Registrar within a limited time. If this objection is made successfully then the squatter will not become the legal owner unless certain conditions are met.

Where the squatter is not entitled to be registered under these provisions, the true legal owner then has two years to obtain possession as against the squatter. If he does not do so, the squatter will then have an opportunity to reapply for registration as the true legal owner provided that he remains in possession for a further two years. If successful, he will then be registered as proprietor.

How we can help

Whether your land is registered or unregistered, discover that the land you are using legally belongs to another, or you believe that someone else is possessing your land, we would like to assist you. At W H Matthews & Co our lawyers have a wealth of experience of these and other land issues. We can find solutions that can satisfy your needs while allowing the sale of your property to continue, saving a business relationship or reaching an amicable agreement between neighbours.

If you would like to discuss this further then please do not hesitate to contact a member of our specialist Property Department at an office of your choice.