This is probably one of the most too-good-to-be-true situations that you can come across within property management; to have a legal right to have the ownership of a piece of land and property for nothing. It sounds like you’ve won the property lottery, and you end up with a new title for a piece of real estate that you pay nothing for – very nice.
This is through the legal principle of ‘adverse possession’ and is completely legitimate. Of course there are set criteria and procedures, but the gist of it is to help a party who has been effectively using and treating land and property like their own for a number of years, giving them the right of the ability to inherit the land ownership.
It may be a whole property, maybe a derelict house or workshop and shed, which will evidently have value to it and a serious gain for any occupier to obtain ownership of. More usually though it is for forgotten pieces of land and buildings, maybe strips of land along a boundary or pavement, or an extension of a building over other land.
The Legality of Adverse Possession
So this legal principle of ‘adverse possession’ technically has two parties involved. The current land or property owner is called the ‘paper owner’, as they hold the actual ownership title still, and the occupier known as a ‘squatter’.
Although people often associate this ‘squatter’-type person as someone in a derelict building trying to get away from eviction, within this contact it can be all perfectly normal occupation that no one even knows about or disputes.
In terms of what actually makes up this form of possession, there are three aspects to it.
Firstly, there must be sufficient time occupying the land; twelve years under 'old rules' from at least 1991 to 2003, and ten under 'new rules'.
Secondly, to have factual possession, and what is legally described as 'exclusive possession'. This is total control of the land, which should not have been interupted, however any threats or access rights away still being permissable.
Thirdly for the occupier to have an intention to possess the land or property. These include exclusive use of the property themselves and therefore any claim only being possible from one rather than multiple parties.
They basically need to occupy and treat like the land is theirs, with a history of regular acts that they use it as normal and actually without the ‘title owner’s’ consent. This can actually include previous predecessors’ use as well to make up the ten or twelve years occupation period.
The Process of Adverse Possession
There was a change in how this legal principle works from October 2003 through the Land Registration Act 2002, although any unregistered land with suitable adverse-possession of this post October 2003 will still fall within this old regime.
In short, this ‘old regime’ is where someone exclusively occupies a piece of land or property themselves without being interrupted for at least twelve years, and the original paper-title ownership is automatically extinguished and this new occupier can seek formal ownership of it. Any owners therefore needs to be on the ball and stop any such use or begin legal proceedings to defend it, and it requires an element of pro-active monitoring of land that they may not practically be aware of.
Post October 2003 under the new regime, the principle is still there but with a few loop-holes for the occupier to go through in an effort to calm things down. In reality this is for the majority of cases nowadays and covers all registered land, with two stages to consider.
Firstly, the initial stage of occupation is reduced from twelve to ten years, however the occupier must then serve a prescribed notice on the registered land owner and any associated and superior interests and charges. As it’s registered through the Land Registry, they’ll know who these are, and there’s a set form to complete to begin the process.
This does actually make sense, as the paper-owner has a fair opportunity to remedy the situation of their land being taken from them rather than automatically happening as previously.
The landowner can then serve a counter notice to object and end the process. However, if the occupier has the genuine 10-years adverse occupation under their belt, then they can still claim ownership via three portals of an equitable interest, another land interest, or a reasonable mistake concerning boundaries in order to still proceed.
Secondly, even if an owner is successful with their case to keep the land, they must make sure the occupier is off the land over the following two years, and consider taking action such as judgement for possession or court order in order for them to vacate. Failing this, the occupier can apply a second time, but this time it becomes more an automatic application without the owner being able to defend.
The Options With Adverse Possession
So there’s the theory, and here’s some of the practice. Actually knowing how to instigate adverse-possession rights if you’re a ‘squatter’, or defend a claim if you’re a ‘paper title’ owner can be a different kettle of fish.
1. Consider Normal Negotiations First
Particularly for pieces of small and value-less land and maybe buildings, the current owner may be up for simply agreeing a transfer to the occupier and so save the hassle and costs of the adverse-possession procedure.
This is often for small strips of land that have no real use, and in fact may be a liability to the current owner but will complement other land for someone else, and so it’s in everyone’s interest. Watch out though for false starts, and still needing to cover legal fees of parties.
2. Obtain Proper Legal Advice
Although it boils down to form-filling under the new regime to instigate this right, because it is such an unusual area it’s worth obtaining some correct legal advice. Details such as naming and serving to the right parties, and how to defend any counter-claim from a title-owner will pay dividends.
If you are needing to prove adverse possession through legal proceedings, then make sure you have all the apporpriate information to prove this, for example photos, aerial pictures, correspondance and communication, and statements from people.
3. Be Wary of What You Inherit
So although the land may seem fine at face value, remember that you will inherit everything lock stock and barrel, including any legal and land interests with it, but excluding any registered charges by the current owner. There may be maintenance and claim issues, and other rights and privileges for other parties over the land.
4. Keep Land Registry Details Correct
This is more for the benefit of any landowner, but make sure correct names and contact details are lodged at the Land Registry so that you will receive notice first of any adverse-possession claims in order to then defend.
5. Keep Your Land Well Managed
Again more for land owners, but keep regular logs and then visual checks of all your land, and make sure there is no potential adverse-possession 10-year use emerging that can come back and bite.
If there is, then correctly deal with and if needs be evict, with records of this being accomplished.
6. See Who Has The Adverse Possession Right
Because it boils down to actual use of land, then this might be different to any other interest wanting the land.
So a landlord may own an adjacent piece of land let to a tenant, but it’s the actual tenant that has ended up using the extra land in question and so having the adverse-possession rights.
The Free-Land Opportunity
So gaining land and property ownership for free is a real-life possibility through adverse possession rights.
Although these were watered down from 2003, they still exist, and with the correct procedures and requirements can help genuine users gain the paper-title to the land afterwards.
If you’re an occupier looking to action this, then check that all the criteria are met, and after looking at other negotiation options, take careful advice before taking action.
If you’re a landowner, then not only make sure these rights don’t exist to begin with, but after they are instigated then take action afterwards to evict the occupier, otherwise they can come back within two years and force your hand.