Adverse Possession – Where are we now?

22-01-2019

Jan Samuel solicitor adverse possession squatter's right explained

There are two different regimes for establishing adverse possession, also commonly known as "squatter's rights".

Old Law

This applies to unregistered land and registered land where adverse possession is claimed in relation to adverse possession for 12 years, prior to 13 October 2003.

The old rules are relatively well known and there are numerous cases dealing with what amounts to adverse possession for a trespasser to gain title to the land. 

New Law

The Land Registration Act 2002 has created a new regime that applies only to registered land. The ability to obtain adverse possession is very much more restrictive although the time required for a potential adverse possession claim has been reduced from 12 years to 10 years.

In the vast majority of cases, for a claim for adverse possession to succeed, the disputed land must be next door to the applicant’s own land. In addition, the applicant must have reasonably believed that the land belonged to them. 

The trespasser applicant must also prove that:

“for at least 10 years of the period of adverse possession ending on the date of the application, they (or any predecessor in title) reasonably believed that the land to which the application relates belonged to them”.

What is meant by “reasonable belief” is still far from clear. A potential hurdle for the applicant is if the land owner has challenged the trespasser’s claim some time before the application is made. Two messages become clear, however

  • The land owner should challenge the trespasser’s claim at the earliest opportunity, giving reasons why the land does not belong to the trespasser. The trespasser therefore has to act quickly if he is to have any realistic chance of proving an adverse possession claim.
  • The trespasser would be well advised to make a claim without delay and before any kind of challenge is made by the land owner. 

Procedural Issues

The process for applying for adverse possession and objecting to such an application are governed by the Land Registry rules which should be carefully followed. 

The best advice is to seek specialist legal advice at the earliest opportunity in relation to either making or defending a claim for adverse possession.

If you think that someone is trespassing on land which belongs to you, or if you think you might be in a position to claim adverse possession, contact us today to see how we can help.

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