What is adverse possession?
The principle of adverse possession allows a person occupying land which belongs to someone else to acquire the legal title to that land. Commonly described as ‘squatter’s rights,’ case law has allowed successful claims by those who have planted flowers and grazed animals on another’s land.
On 13 October 2003 provisions of the Land Registration Act 2002 (“LRA 2002”) came into force which effectively created two separate regimes for dealing with adverse possession claims. If the claim is in respect of unregistered land, or based on possession of land prior to 13 October 2003, then the ‘old regime’ applies. If the claim is in respect of registered land, or relates to possession after 13 October 2003 then the ‘new regime’ applies.
Common to both regimes are two requirements that must be met to prove adverse possession:
Proving Adverse Possession
The occupier must have enjoyed uninterrupted factual, or physical, possession of the land.
This is where the difference between the two regimes is most apparent. If the old regime applies, then the possession of the land must have been for at least 12 years. If the new regime applies, then the possession must have been for at least 10 years.
In Beaulane Properties Ltd V Palmer  the courts found that the occupier’s grazing of animals on the land was sufficient to prove “factual possession” of the land. However it was reiterated that factual possession alone is not enough. The occupier must also show an element of intention, which brings us to the second requirement.
As well as possession, the occupier must also prove that, during the requisite time period, it was their intention to possess the land. This intention can be proven by demonstrating a “sufficient” degree of exclusive physical control over the land.
While what is ‘sufficient’ will depend on the facts of the case, the decision in Pye v United Kingdom  confirmed that an intention to possess the land to the exclusion of others would generally be enough to make a successful claim.
Crucially, the occupier must deal with the land as an occupying owner would do, and exclude all others from doing the same, including the legal owner. The concept of ‘exclusion’ reflects the idea that the occupier’s actions are unequivocal, and makes it clear that they intend to exclude the owner. It is generally accepted that fencing off the piece of land occupied demonstrates an unequivocal exclusion of the owner.
Applying for Adverse Possession
Under the old regime, in the event that the occupier can satisfy these two requirements, they are able to apply for registration as the owner by adverse possession.
Under the new regime, the registered owner has the opportunity to submit a counter-notice to the application, requiring the occupier to satisfy one of the following conditions:
Therefore the introduction of the new regime makes it more difficult for the occupier to successfully apply to be registered as the owner by adverse possession.
Landowners and those who work in the agricultural industry are particularly affected by adverse possession issues. It may be easy to forget about a piece of land that is being used by third party informally when there are acres of land in an estate. If you are unsure or concerned that a piece of land you own has been used by a third party or fenced off for a long period of time, it is important to seek legal advice and formalise the position with that person through, for example, a grazing licence or lease to prevent a claim for adverse possession arising.
For more information on any of the above, or how we can help you, please contact Sara Malik, or call 0191 232 8345.