Adverse Possession

 

What is adverse possession?

Adverse possession is the occupation of land by a person not legally entitled to it. If adverse possession continues unopposed for a period specified by law (known as the ‘limitation period’, see below), a squatter can gain legal ownership of land without paying any compensation.

Adverse possession can also arise where someone has used land as if it was their own for over 10 years and, if established, will be a complete defence to any trespass claim, even where they do not own the title on the land.

In order to acquire title by adverse possession, a squatter must have:

  • factual possession of the land
  • an intention to possess the land to the exclusion of all others, including the legal owner
  • the possession must be ‘adverse’, ie without legal entitlement or without the owner’s consent.

In order to have factual possession of the land, the squatter must be dealing with the land as an owner might be expected to, and no one else must be doing the same. There must be an appropriate degree of physical control, which is to be determined on the circumstances of each case.

It is not necessary for the adverse possession to be by one person for a continuous period as the period of possession of successive squatters may be considered as one.

An acknowledgment by the squatter that the owner of the legal title has a better title than the squatter will interrupt the period of adverse possession. Such an acknowledgment must consist of a statement by, or on behalf of, the squatter that is reasonably understood by the legal owner to be an acknowledgment of her/his title. A solicitor’s letter that acknowledged the owner’s title to the land did not interrupt the period of adverse possession where it was written on behalf of the squatter’s company, rather than the squatter himself.  In a case where the owner of the paper title did not pursue possession proceedings within the limitation period, despite ample opportunity, the decision to grant ownership of the property by adverse possession was upheld.

Adverse possession can often be an issue in all of the above examples and we have experience of contested land registry applications for possessory title based on adverse possession, as well County Court and High Court proceedings for possession, injunctions and declarations.

Hagen Wolf can advise you on the full legal test for adverse possession if this situation arises. Please do get in touch.