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Insights // 25 June 2019

Acquiring Land through Adverse Possession

Partner Katja Wigham, in our Commercial Property team, explains how and under what conditions you can make a claim for adverse possession.

If you have been in possession of land which you do not legally own for a period of 10 years (in the case of registered land) or 12 years (in the case of unregistered land) you may have a claim for adverse possession. If that claim is successful you could become the registered legal owner.

The rules for unregistered and registered land are different in most cases (depending on the date of the period of possession relied upon). You should therefore seek to determine whether the land is registered with HM Land Registry as a first step.

In either case, you can apply to the Land Registry to become the registered owner. In the case of registered land this is somewhat more difficult as there is already a registered legal owner and the requirements for a successful claim which were introduced for registered land in 2003 are much more difficult to satisfy. Also, in this case the Land Registry will be obliged to give notice to the registered owner on receipt of your application. The legal owner is then entitled to object to the application.

Evidence will need to be supplied to the Land Registry to prove the relevant period of possession and the relevant intention. You will need to prove that you have been in uninterrupted possession of the land and that you intended to possess the land during the relevant period. You would therefore be able to show that you have been using the land as if you were the legal owner and doing so to the exclusion of all others (for example by fencing in the land or maintaining it). Evidence may include statutory declarations and photographs of the land and its use during the period of possession.

If your claim is successful the Land Registry will register you as the legal owner. It should however be noted that the only title that can be given in these circumstances is ‘possessory title’ and this is a title that could be challenged in the future. Once the land has been registered for 12 years you may apply to have this upgraded to ‘absolute title’ which is the best class of title available.

Due to the notification to the registered owner, and the fact that only ‘possessory title’ can be granted if you apply to the Land Registry to procure already registered land, it should be considered whether there is merit in approaching the registered owner in the first instance and requesting that the land is transferred to you. If the registered owner is willing to transfer the land you could gain ‘absolute title’ straight away. Of course, there is the chance that the registered owner will refuse to transfer the land to you, in which case you could still apply to the Land Registry but it is likely that the owner would then object to the application once they have received notice of the same. Caution should however be exercised as approaching the land owner could negatively impact on your claim and would make it impossible to obtain indemnity insurance.

If there is not enough evidence, the land is registered and the application is likely to be objected to it could be considered whether you should therefore continue to occupy the land informally. However this of course will not give you the certainty and comfort of having the land registered in your name.

Legal advice should always be taken before making a claim or approaching the paper title owner to ensure that you stand the best possible chance of a successful outcome.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Katja Wigham

Katja Wigham

Partner, Commercial Property Law

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