How do you claim land that no one owns?

It is probably unrealistic to think that land is not owned by anyone, as most land in England is owned by someone, even if it is unregistered making it difficult to find out who the owner is. 

If you want to make a claim over land that isn't yours, there is a procedure which should be followed. When you take over land that belongs to someone else, it is known as "adverse possession" and strict rules apply as to when you can make the application, and what evidence you need to provide in support. 

The person who makes the application for adverse possession can also be known as a squatter, and adverse possession is sometimes referred to as "squatter's rights".

What do I need to prove for adverse possession?

If you want to make a claim for adverse possession over a piece of land, you have to be able to prove that you:

1. Were in actual factual possession of the land. This means that you must have had physical control over the land, and were dealing with the land in the same way as the actual owner would have been. For example, fencing of the land would be good evidence that you had physical control over it; 
2. Intended to be in possession of the land, to the exclusion of everyone else, including the owner of the land. This means that simply using the land for access to another piece of land would probably not be enough;
3. Did not have the consent of the landowner to use or possess the land. Therefore if the land owner has given you permission to use or occupy the land, you can never claim adverse possession; and
4. You have been using the land for at least ten years before the application for adverse possession was made. 

It is not possible to make a claim for adverse possession if:

1. The owner of the land has a mental disability which prevents them from making any decisions about an application for adverse possession;
2. You have made a failed claim for adverse possession within the last two years;
3. The land you are seeking possession over was held in a trust; 
4. The land you are seeking to possess is part of the public highway, maintained at public expense; or
5. If the land actually belongs to you and the Land Registry plans are inaccurate. In those circumstances, a different procedure to correct the Land Registry's records should be used. 

There are rarer circumstances (such as making claims against the Crown Estate or in relation to land on the foreshore of the sea) which have slightly more complex rules and different time periods, which we will be able to advise you about, if that is applicable to your case. 

What evidence do I need to start an adverse possession claim?

All applications for adverse possession must be made on the Land Registry's form ADV1, as well as being accompanied by a witness statement signed with a statement of truth, or a statutory declaration, and dated within a month of the application being made.

The application for adverse possession must be accompanied by: 

1. Any evidence to support your claim for adverse possession, including witness evidence, historical plans, photographs, historical aerial images, and information from Companies House if the land you are seeking to possess is owned by a company. Your witness evidence should provide details about when you started using the land and what you have used it for;
2. A plan, signed by you, identifying the land which is the subject of the application;
3. Confirmation that there are no current court proceedings against you in relation to the land, or that you have not had judgment against you in relation to the land in the last two years;
4. Confirmation that you are not aware that the land owner is suffering from any mental disability; and 
5. Confirmation that the land is not subject to a trust, as far as you are aware. 

How much does it cost to apply for adverse possession?

When you make an application for adverse possession, you also have to pay a fee to the Land Registry. The current fee is £130 per title, but this may change over time. You should check what the exact fee is when the application is made. 

How long does an adverse possession application take?

Once all of the necessary evidence has been submitted to the Land Registry, they will:

1. Give notice of your application to the owner of the land and anyone else who has a right to be notified, and provide them with copies of your evidence. Anyone who receives notice will have 65 days to respond (consenting to the application, objecting to the application, or giving counter notice); and
2. Arrange an inspection of the land by a surveyor, who will prepare a report.

If no counter notice or objection is received within 65 days, the land will be registered in your name. 

What if someone objects to an adverse possession application?

Anyone who receives notice of an application for adverse possession can raise an objection, or serve a counter notice. If you have received notification from the Land Registry that someone has made an application for adverse possession over land that you own, which procedure should you use?

An objection to an adverse possession application must include a signed statement in writing, giving full contact details and the grounds for the objection. Possible grounds for objection could be:

1. The applicant has not been in possession of the land for the required ten years; 
2. The applicant was not in factual possession of the land;
3. There is some defect in the application. 

Notice of the objection will be given to the applicant and if agreement cannot be reached between the applicant and the objector, the matter can be referred to a tribunal for a formal determination hearing. 

If a counter notice (rather than an objection) is filed, the Land Registry must deal with the application under one of three grounds set out in Schedule 6, paragraph 5 of the Land Registration Act 2002. 

Adverse Possession Against Leasehold Land

If you are seeking to claim adverse possession against leasehold land, the ten year period only starts to run against the landlord, once the lease has expired. This means that you could well have to wait a great deal longer to make an application for adverse possession against land which has been leased to someone else, even if you meet all of the other requirements. 

Can I apply for adverse possession myself?

Yes, you can make the application for adverse possession yourself. However, it is a fairly complex procedure and it is advisable to seek legal advice before your application is submitted, as you run the risk of a faulty application being rejected, and notifying the landowner of your adverse possession in the process. 

Do I need a solicitor for adverse possession?

Technically, you do not need a solicitor to submit your application for adverse possession, but because the process is complex, and the damage that could be caused to you by making a faulty application could be serious, it is sensible to ask a solicitor to help you with the application. 

At Samuels Solicitors LLP, we can help you apply for adverse possession, and we can assist landowners who wish to object or file a counter notice in relation to land which they own. We have offices in Devon and Newcastle and help clients from all over the country. 

Contact us today to find out how we can help.