Written by Sarah Cracknell, Chartered Legal Executive at Spire Solicitors LLP.
There is a piece of land at the rear of my property which I believe to belong to me but it is not included within my title deeds. Can I claim it as mine?
That is a question which is often raised by clients but the issue is not that straight forward. Acquiring land by adverse possession is the process whereby a person who is not the legal owner of land can become the legal owner of it. You will need to be able to show evidence of a) the fact of possession (e.g. fencing), b) the intention to possess (the use of the land) and c) possession without the owner’s consent. You can ask your Solicitor to carry out a search with the Land Registry to ascertain whether or not the land is registered or unregistered. If the land is registered, the true title owner will be identified and it can be more difficult to obtain title to the land. Where the land is unregistered, you are more likely to succeed with the claim.
What does the law state?
The law differs between whether or not a person is in adverse possession of unregistered land as opposed to land that is registered at the Land Registry. Title to registered land can be acquired under the provisions of the Land Registration Act 2002. If you have been in possession of registered land for 10 years, you may apply to be registered as the owner. Adverse possession for unregistered land comes under the Limitation Act 1980 and you would need to be in possession of the land for 12 years without the title being challenged. Schedule 1, paragraph 8(2) of the Limitation Act 1980 allows that a person in possession can pass on their interest in the land, for example to a purchaser or under a will or intestacy. The purchaser would need to immediately follow the original person into possession and hold for the remainder of the 12 years.
What will the Land Registry do once they have received an application for adverse possession?
The registrar will usually arrange for a survey of the land to be carried out to supplement the information provided in the application. He will also serve notice on the registered owner or anyone he thinks may have an interest in the land or grounds for objecting to the application. Provided the registrar is satisfied that the applicant has a good claim to have acquired title by adverse possession, title absolute (the best form of title) will be awarded where the land is registered. Possessory title is likely to be awarded where the land is unregistered and the owner can upgrade to title absolute after 12 years. This is providing no one comes forward claiming a better title to the land during this period. The land can be sold in the usual way and the new owner can upgrade the title once the period has lapsed.