What is Adverse Possession and How Does it Work? A Guide for Landlords
Adverse possession is a legal concept where someone may be able to claim legal ownership of land just by occupying it in some cases. Here we explain what adverse possession is and how it works.
What Exactly is Adverse Possession?
Adverse possession describes a legal concept where someone who does not have legal title to land and who did not buy it can become its legal owner. They do this by being in possession of it for a long enough period to override the interests of the original owner.
Adverse possession is called adverse possession because it goes against the overall concept that someone who occupies land should either legally own it or have permission from the legal owner.
If you have ever heard the expression that ‘possession is nine points of the law’ you may ask if whether by just occupying land you can actually come to own it. The answer is – yes you can – in certain circumstances.
Adverse possession can apply to a piece of land or to a house or flat.
Adverse possession is not quite so simple as possessing land for a period long enough to claim ownership of it, however. There are a number of exceptions and conditions.
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Examples of Adverse Possession
- Adverse possession could involve someone intentionally occupying a piece of land someone else owns, perhaps without their knowledge or without them objecting to it, then claiming ownership of it after a number of years.
- Adverse possession could be someone occupying a piece of land someone else owns perhaps unintentionally. For example, maintaining a piece of a garden on the border of two properties. After a number of years, they may be able to claim ownership of it.
- Adverse possession could be someone taking over a piece of land which no one knows who actually owns. For example, a piece of so-called wasteland. After a period they may be able to claim ownership of it by using adverse possession.
Is Adverse Possession the Same as Squatters’ Rights?
Squatting is usually a kind of adverse possession. It is not generally possible for squatters to simply occupy a property and claim ownership of it. But it is possible for a situation to occur where squatting in a property may allow squatters to claim ownership of it by using the concept of adverse possession.
The Differences Between Registered and Unregistered Land
Whether some land is registered or unregistered is relevant to the concept of adverse possession.
This is important because the law on adverse possession differs according to whether the land is registered or unregistered. The Land Registration Act 2002 changed the way in which adverse possession applied from October 2003.
All land is either registered or unregistered in England & Wales with HM Land Registry. Any land is automatically registered when it is bought and sold. When land is registered it means there is an official record of the owner of the absolute title in the land. Official figures suggest that around 15% of all land is unregistered.
Adverse possession of any land that is unregistered is more likely to be possible. In this case, if someone has possession of a piece of land for an uninterrupted period of 12 years, and that possession is not challenged by the legal owner, they may be able to claim legal ownership of the land using the concept of adverse possession.
Public roads and parts of them cannot be claimed in this way. It is automatically assumed they are owned and controlled by the local authority.
The situation on adverse possession of registered land changed when the Land Registration Act 2002 came into force in October 2003. This law makes it much more difficult for anyone to claim adverse possession of any land that is registered with HM Land Registry.
There are some circumstances where it may be possible to claim adverse possession of registered land: Generally, a person claiming adverse possession would have to be in possession of the land for 10 years, be able to prove it, and there would need to be no objection from the registered owner.
How to Claim Adverse Possession
It is sometimes assumed that a claim for adverse possession of land is done on a hostile basis. This is not necessarily the case, however. There may be cases where a person applies for possession of any land which they believed they were entitled to but legally did not own for some reason.
If you wish to claim adverse possession of land there is an official procedure for doing so. It is highly advisable to take expert legal advice before considering a claim for adverse possession.
A person may apply for what is known as possessory title after possessing some land for a specified period. Applications of this type are not handled by the courts. These applications are handled and processed by HM Land Registry.
Application for adverse possession is made using form ADV1: registration of a person in adverse possession.
HM Land Registry will check to ensure the legal requirements are being met. Generally, the applicant must show what is known as factual possession, that they are in exclusive possession, that they are using the land and have a commitment to so doing.
If the land is registered HM Land Registry will serve notice on the registered owner and any other interested parties, eg. any mortgagee of the land, that an application for adverse possession has been made. These parties will then be entitled to make an objection.
In most cases, an application for adverse possession of registered land will be rejected automatically, except in a limited number of cases, when the registered owner objects. A claim for adverse possession of unregistered land may be accepted if the conditions are met and there are no valid objections.
If a claim for the adverse possession of land to HM Land Registry is successful the applicant will be registered as having legal title to the land.
How to Defend Against Adverse Possession
If you find someone has taken possession of some land you own or believe you own without your permission you should take legal advice. You should also report it to the police particularly if the property is a residential property as their actions may constitute a criminal offence. You should not try to forcibly evict someone who has taken possession of your land without taking legal advice first as in some cases this could be illegal.
How to Prevent Adverse Possession
Property owners should always be aware of adverse possession and that, occasionally, someone else may claim adverse possession of land they own. Property owners can help minimise the risks of a valid claim of adverse possession being made using a number of measures:
Ensure that any property you own is registered with HM Land Registry. This includes property you have bought, inherited or been given. If you own land that is unregistered consider registering it as soon as possible.
Ensure that HM Land Registry always has your up to date contact details.
Check that the property you believe you own is the same as that which is actually registered with HM Land Registry. Check the title deeds or title plan.
Ensure that any land you own is properly secured and maintained if you are not actually using it or visiting it regularly. If your land is occupied by anyone without your permission take expert advice on the appropriate course of action as soon as possible.
If you rent out your property or land ensure that your tenants, lodgers etc. have a proper legal tenancy or licence agreement to occupy it.
Adverse Possession in Scotland
English law and Scottish law differ in several ways including in property law. It is possible for adverse possession to occur in Scotland. However, in Scottish law, it relies on the concept of prescription instead.
This article is intended only as general guidance and not intended to form legal advice on the subject of adverse possession. It is recommended to take advice from a solicitor who is experienced in the law of property and adverse possession.