Adverse possession


Derek Inkpin from local solicitors Wiseman Lee talks about adverse possession – sometimes colloquially described as squatter’s rights – and the issues landowners should be aware of

If you own a house with a front and rear garden with fencing along each boundary, adverse possession – a squatter asserting that they are in occupation of part of your land – will not likely concern you. But if, for example, the end of your garden, or part of it, is fenced off by an adjoining owner who then cultivates or uses it in some way to demonstrate that you as the true owner are no longer in possession, you might, after a lengthy period, find yourself facing an adverse possession claim.

The legal position on this aspect of the law changed in 2003 with the introduction of the Land Registration Act 2002. Before the Act came into force, if a squatter could prove they had been in control of the land for 12 years or more, then they could oust the true owner’s legal title. That remains the position with unregistered land, but the 2003 Act changed the law with registered land.

From October 2003, the length of time to prove adverse possession was reduced from 12 to 10 years. If the squatter after that period makes an application to the Land Registry for an order to cancel the true owner’s land title, the registered owner can then serve a counter notice opposing registration of the squatter’s title, in which case the squatter’s application will fail.

However, opposition to the squatter’s application could be rejected if it would be unconscionable to do so. This could arise if the true owner had, over the years, behaved towards the squatter in such a way that demonstrated they did not object.

Another example could be if the squatter had been in adverse possession of land adjacent to their own under the mistaken belief they are the owner of it. This could arise if the squatter altered the line of the fencing between your land and theirs to produce a straight line and you made no objection. After 10 years, that outcome could result in the loss of a small amount of your land.

For an adverse possession claim to succeed, the squatter needs to demonstrate physical control together with an intention to possess it, which is normally deduced from the actions of the squatter. In addition, the possession must be without the owner’s consent.

The 2003 change in the law means it is now almost impossible to obtain title by adverse possession. But just remember that any act by an adjoining owner over a 10-year period which incorporates part of your land with theirs without objection could result in the loss of your legal ownership of it.

Wiseman Lee is located at 9–13 Cambridge Park, Wanstead, E11 2PU. For more information, call 020 8215 1000

Author: Editor