When Possession Really Is Nine Tenths Of The Law

The English legal system has developed by the decisions of judges throughout the ages and will continue to develop as more cases come before the courts. This has left us with many delightfully quirky legal principles, many of which fall within the law of real property. Few are more controversial than the idea of adverse possession - that a person can gain legal title to a parcel of land (and oust the previous owner) simply by being in possession of that land for a certain period.

We provide an overview of the concerns for land owners or developers and how to deal with people who have encroached on your land.

This seems at odds with one of the fundamental principles of land registration - that the register of title should be like a mirror, reflecting all of the important details about a parcel of land so that a would-be purchaser is sure about what they are purchasing.

It is therefore important for people who deal with property to understand how adverse possession works - and if you own land, how to avoid losing it.

What is adverse possession?

Adverse possession (sometimes referred to as squatters' rights) is a mechanism by which a person who is not the owner of land can acquire legal title to that land by being in possession of it for a set period of time. The concept has its origins in Roman law, and part of the underlying rationale behind it comes down to the fact that land is a limited resource; if one person is not taking good care of their land and properly attending to it then someone else should be given the opportunity to do so.

This seems to some people to be rather draconian. To ensure fairness to all parties, a system of rules have been put in place to help decide when a party can oust the previous owner. There are two sets of rules governing when a successful application for adverse possession can be made - the rules which came into force for registered land with the Land Registration Act 2002 (the "Post-2002 Rules") and the rules which preceded them (and still apply today in relation to unregistered land) (the "Pre-2002 Rules").

The Pre-2002 Rules

A squatter can apply to be registered as owner if they have been in adverse possession of the land to the exclusion of all others for 12 years. However, nowadays this will only apply in circumstances where:

The land is unregistered; or The land is registered and period of possession relied upon ends before 13 October 2003. The Post-2002 Rules

The Post-2002 make it much harder to bring...