Adverse Possession

• Published date: 21 December 2022
• Subject Matter: Real Estate and Construction, Real Estate
• Law Firm: Herrington Carmichael
• Author: Ms Frankie Tierney and Dil Vajaria

Adverse possession is a legal principle by which an individual who is not the legal owner of land can become the legal owner by being in possession of the land for the requisite period of time. Adverse possession is often referred to as "squatters rights", and the concept of it has been the subject of controversy, however, as explained below, it is not as simple as possessing the land; certain conditions need to be met before adverse possession can be successfully claimed.

The procedure to be followed depends on whether the land is registered or unregistered and both regimes are covered below.

For both regimes, there are three common requirements which must be met. These are set out below:

1. The applicant has had factual possession of the land for the requisite period - this signifies an appropriate degree of physical control and each case will be considered on its own merits.

2. The applicant has the necessary intention to possess the land - you must be able to establish that you intended to possess the land as your own during the period of possession. It is common for the intention to possess to be deduced from the same facts where factual possession has been established, however it is not always the case.

3. The applicant's possession is without the owner's consent - possession can never be adverse if the true paper owner has consented to the occupation, for example, under a lease or licence.

Additionally, depending on whether the land is registered or unregistered, the applicable procedure will apply.

Registered land

The procedure for adverse possession of registered land is set out in the Land Registration Act 2002 ("LRA 2002") and came into force on 13 October 2003. This does not apply to land where the possession relied on is for a period of 12 years ending before 13 October 2003.

Under the LRA 2002, an applicant may apply to be registered as proprietor of land after ten years of adverse possession. Prior to the LRA 2002 coming into force, an applicant could acquire the right to be registered as proprietor of the land if they had been in control of the land for a minimum of 12 years, and this would bar the registered proprietor's right to recover the land. However, under the LRA 2002, no limitation period applies, and an applicant can make an application to be registered as the proprietor of land after ten years of adverse possession. Within the application, the applicant must produce evidence showing that they have been in adverse possession of...