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Insights // 23 January 2017

Adverse Possession Explained

Philip D'Arcy, in our Dispute Resolution team, explains adverse possession in relation to land.

Under the Land Registration Act 2002 (LRA 2002), a party can claim adverse possession over registered land if they have been in possession and have had the intention to possess, for a period of at least ten years, without consent, secrecy or force. The party must apply to the Land Registry to replace the current registered owner.  Notice will be given to all other parties that will be prejudiced if the application is successful. Those parties are able to object and/or serve a counter-notice in response to the application.  If the parties consent to the application or do not respond to the notice, the application is treated as being accepted and will proceed.  This will result in the applicant of the adverse possession claim becoming the legal owner of the land in question.

However, if those interested parties object to the application, the applicant must be able to demonstrate at least one of three conditions exists, before proceeding with their adverse possession claim: 

  • Proprietary estoppel
  • Some other reason why the applicant is entitled to the land
  • A mistaken belief as to boundary

Proprietary estoppel

For proprietary estoppel to succeed, the applicant must demonstrate that the current owner of the land encouraged the applicant to believe that the applicant owned the land and that as a result of that the applicant acted to their detriment. 

Some other reason

Some other reason why the applicant is entitled to the land may include, for example, rights under a will or intestacy.

Mistaken belief

A mistaken belief as to boundary relates to an applicant who owns the adjacent land having a reasonable belief that the land in fact belonged to them. 

If the applicant cannot show at least one of these conditions and their application is rejected, they are able to reapply in two years from the date of the rejection, provided they continue to adversely possess the land in question.  It is therefore extremely important for the actual registered owner to take immediate steps to evict the “squatter” from the land if their application is rejected.

The procedure for claiming adverse possession under the LRA 2002 of registered land is different to the procedure for claiming adverse possession of unregistered land.  Parliament made it more difficult to succeed in such claims in relation to registered land due to the desire for certainty in registered titles and the uproar caused by the House of Lords case of J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, where land with a substantial value was lost to “squatters” due to the owners’ failure to monitor their land effectively.

Landowners

To ensure that squatters are not occupying the land, and cannot therefore claim adverse possession, it is advisable to physically inspect the land regularly. Landowners should also ensure that their names and addresses are accurately recorded at the Land Registry so that they are properly and promptly given notice of any applications, as failure to serve a counter-notice may lead to the applicant becoming the registered proprietor of the land. 

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.

Philip D'Arcy

Philip D'Arcy

Notary Public

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