Land Law: Adverse Possession

Adverse Possession

Adverse possession enables a person who occupies or ‘squats’ on another person’s land to acquire property rights. These can potentially become stronger than the original owner’s rights. It arises from the principle of relativity of title. A person who takes possession of land immediately gains a freehold interest in it: one which is inferior to pre-existing ownership interests.

Adverse possession has two elements: factual possession and intention to possess.

Possession in Fact

The adverse possessor must first show that they actually possess the land. This means establishing sufficient physical control over the land. What is sufficient depends on the land’s nature and normal use: Lord Advocate v Lord Lovat (1880) 5 App Cas 273.

The essential test is that the adverse possessor must have been occupying the land ‘as an occupying owner might’: Thorpe v Frank [2019] EWCA Civ 150.

The possession must be exclusive: Leigh v Jack (1870) 5 Ex D 264. It must also be ‘adverse’ – the adverse possessor cannot have the owner’s permission to be there: BP Properties Ltd v Buckler (1988) 55 P & CR 337.

The possession must be open and not concealed: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. There is no need for the original owner to be aware of it, however: Powell v MacFarlane (1977) 38 P & CR 452.

Fencing, ‘keep out’ signs, installing locks, and other attempts to exclude others is good evidence of exclusive possession: Buckingham County Council v Moran [1990] Ch 623.

To establish possession in fact, it is also necessary to show that the original owner no longer occupies the land. This can be either because they have been dispossessed by the adverse possessor or because they discontinued their possession before the adverse possessor arrived: Powell v McFarlane (1977) 38 P & CR 452.

Intention to Possess

The adverse possessor must also show that they intended to possess the land and exclude the whole world, including the original owner: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. They do not need to intend to own or gain ownership of the land, however, nor do they need to deny that another owns the land.

This test is objective: would a hypothetical, informed observer perceive the adverse possessor as communicating an intention to possess the land and exclude all others?: Wynne-Finch v Natural Resources Body for Wales [2020] EWHC 1924. Much of the same evidence that establishes factual possession can establish intention to possess: such as locks and fences.

The Consequences of Adverse Possession

The legal consequences of adverse possession depend on whether the land is registered or unregistered.

Unregistered

Those with a greater right in unregistered land than the adverse possessor are time-barred from bringing an action to evict them after 12 years of continuous adverse possession: Limitation Act 1980, s.15. The original owner’s title is then extinguished: s.17. This leaves the adverse possessor with the best title to the land: Fairweather v St Marylebone Property Co Ltd [1963] AC 510. There are some exceptions to this, such as where the owner is incapable or there is fraud: s.28.

Registered

By contrast, after ten years the adverse possessor of registered land merely gains the right to ask the Land Register to register them as the new owner: Land Registration Act 2002, schedule 6. The registered owner is then given notice of the application. If they do not respond, the adverse possessor is entitled to be registered as owner. The original owner’s title is then extinguished. If they do respond, then the application is contested.

The original owner of unregistered land cannot stop their title being extinguished. By contrast, if an application to be registered as owner of registered land is contested, the adverse possessor will only succeed if one of the following conditions are met: schedule 6, para 5.

  • The existence of proprietary estoppel makes it unconscionable to evict the adverse possessor and ‘the circumstances are such that the applicant ought to be registered as the proprietor.’
  • The adverse possessor has some reason (other than adverse possession) that they are entitled ot be registered as owner.
  • The parties are owners of neighbouring land engaged in a boundary dispute, and a) the boundary line has not been determined under the rules of s.60 of the Land Registration Act 2002; b) the adverse possessor reasonably believed for the last ten years that the relevant land belonged to them; and c) the relevant land was registered more than a year prior to the application date.

If the application fails but the adverse possessor somehow manages to stay in possession without being subject to eviction proceedings, they can apply again in two years. At this point, they are entitled to be registered as proprietor and the original owner cannot object: paras 6-7.

Terminating Possession

To gain best title, the adverse possessor must be in adverse possession for the full 10/12 years. There are various ways in which possession can end or the possession period can be restarted:

  • If the adverse possessor leaves possession, they must start again from scratch.
  • The possession period will also restart if the adverse possessor gives formal, signed and written notice acknowledging the owner’s title: Limitation Act 1980, ss.29-30.
  • The original owner can end adverse possession by evicting the adverse possessor or giving them permission to stay (since this makes the possession non-adverse): Zarb v Parry [2011] EWCA Civ 1306.
Criminal Possession

The fact that the adverse possession was criminal (e.g. the offence of residential squatting under s.144 of the Legal Aid, Sentencing and Punishing of Offenders Act 2012) does not prevent the adverse possessor from gaining title to the land: Best v Chief Land Registrar [2015] EWCA Civ 17.