Adverse possession: the potted guide

Jonathan Seitler QC guides practitioners through the basics of adverse possession, looking at how someone who is not the owner of land – “the squatter” – can oust the person having documentary title – “the paper owner” – simply by possessing that land without the paper owner doing anything about it for a certain number of years Squatter and paper owner checklist Squatter and paper owner checklist Do the rules of adverse possession apply to all land in the same way?  What amounts to adverse possession? What is the period for which the squatter must be able to establish adverse possession under the old regime? How does the paper owner defeat the squatter’s rights under the old regime? How does a squatter claim its rights under the “new” regime? How can the paper owner defend the squatter’s application under the new regime? What are the “three portals”? What happens if the paper owner defeats the squatter’s claim but then fails to evict or regularise the squatter’s possession?  What is the status of the squatter’s title once it is registered as proprietor?  Do the rules of adverse possession apply to all land in the same way? No. There are two separate, parallel regimes. The “old” regime covers unregistered land and all claims where the 12-year period of possession said to give rise to the squatter’s right to oust the paper owner ends before 13 October 2003. The essence of the regime is the simple idea that after the squatter has been in possession for 12 years, the paper owner is barred by limitation from recovering possession. This “old” regime is slowly dying out: its practical application is now largely confined only to unregistered land. The “new” regime, under the Land Registration Act 2002 (“the 2002 Act”), relates to registered land, which is most of the land in the UK. It is based on the 2002 Act. What amounts to adverse possession? Whether under the old or new regime, adverse possession has two aspects. The first is factual possession of the land by the squatter for the necessary period. The second is the necessary intention of the squatter: Powell v McFarlane (1979) 38 P&CR 452. In relation to the first aspect, factual possession means three things. First, a single and exclusive possession of the land by the squatter, who must treat the land as their own and nobody else must be doing the same over the same time period. This means that a squatter comprising a group of individuals without a single legal personality will not be able to establish an adverse possession: Openshaw & others as trustees of the East Lancashire Cricket Club v P&F Properties Ltd [2014] EWLandRA 2013_0222. Under the “new” regime it is specifically provided that a squatter can also count towards its period of adverse possession any continuous adverse possession of its predecessor, even if part of that period involves squatter 1 permitting someone else to share use of the land: Bezkorowajny v Dawson [2011] EWLandRA 2010_1203. The position is different, though, if squatter 1 has been evicted as a squatter by squatter 2: in that situation squatter 1’s period of adverse possession cannot count towards the period of squatter 2’s adverse possession. Second, a history of acts carried out by the squatter which demonstrate that in all the circumstances, in particular the nature of the land and the way it is and has commonly been used, the land had been dealt with by the squatter in a way an occupying owner might normally be expected to deal with it. Where those acts relate only to part of the land over which the squatter claims rights of adverse possession, only the ownership of that part is liable to become registered in the squatter’s name: Smith v Frankland and another [2015] UKUT 294 (TCC); [2015] PLSCS 199. Third, the absence of the paper owner’s consent. In relation to the second aspect, the intention to possess – the animus possidendi – the squatter must show an intention to possess the land. The intention may be, and frequently is, deduced from physical acts on the land carried out by the squatter. The squatter, though, is not required necessarily to be aware of the status of the occupancy. A squatter who wrongly believed that he was a tenant was held to be able to occupy property in such a way that he had the necessary intention as regards possession: Ofulue v Bossert [2009] UKHL 16; [2009] 2 EGLR 97. These two conditions for establishing adverse possession are definitive: for instance, there is no rule that the squatter must be seen to act inconsistently with the paper owner’s user, “adversely” towards the paper owner, or even to “dispossess” the paper owner: there will be “dispossession” of the paper owner in any case where a squatter assumes possession in the ordinary sense of the word. The word “adverse” in the expression “adverse possession” relates therefore not to the nature of the possession but instead to the capacity of the squatter: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] 28 EG 129. Neither does it matter that the squatter has reason to believe or even knows that the paper owner has plans to develop the land in the future: Buckingham County Council v Moran [1988] EGCS 18. What is the period for which the squatter must be able to establish adverse possession under the old regime? The squatter must be able to establish adverse possession against the paper owner for a clear 12 years, under the “old” regime (30 in relation to Crown lands), before proceedings for possession are commenced by the paper owner. Once that time limit has expired, the paper owner’s title is automatically extinguished: see section 17 of the Limitation Act 1980. From that point on, and without doing more, the squatter can deal with the land as it likes.  How does the paper owner defeat the squatter’s rights under the old regime? The simplest way for the paper owner to prevent the squatter from establishing rights of adverse possession under the old regime is to interrupt the period of possession before the 10- or 12-year period expires. This requires the actual retaking of exclusive possession by the paper owner. It is not enough for the paper owner to start to erect a fence. More than the symbolic retaking of actual possession is required: Zarb v Parry [2012] 1 EGLR 1. The other option is for the paper owner to commence proceedings: Markfield Investments v Evans [2001] 1 WLR 1321. This will stop time running under the “old” regime (but will not do so under the “new” regime). How does a squatter claim its rights under the “new” regime? The new regime under the 2002 Act applies to registered land where the period of adverse possession relied on ends after 13 October 2003. In practice, therefore, it is likely to apply to the vast majority of cases relating to registered land. Under the “new” regime, the expiry of the limitation period does not automatically extinguish the paper owner’s title, however long the squatter may have been in adverse possession. Instead, as long as there are no proceedings for possession already on foot, judgment for possession against the squatter within the last two years or eviction of the squatter by court order, and as long as the paper owner is not suffering from mental disability, then after 10 years of adverse possession or those 10 years having passed and within six months of having been evicted (other than by court order), the squatter is able to apply for registration as proprietor of the land in form ADV1 together with a statutory declaration. How can the paper owner defend the squatter’s application under the new regime? When the squatter’s application to register itself as proprietor is made, the paper owner, as well as the paper owner’s chargee, the owner of a superior interest and anyone who can show an interest in the land, will be notified by the Land Registry and can object. If neither the paper owner or its chargee or the owner of a superior interest or anyone else with an interest objects by service of a counter-notice, the squatter will be registered as proprietor of the land. There may some leeway if it later turns out that such registration was a rectifiable mistake because the squatter did not have the requisite period of adverse possession all along: Baxter v Mannion [2011] EWCA Civ 120. If the paper owner or chargee or the owner of a superior interest or anyone else with an interest does object, and the squatter can establish the 10-year period of adverse possession, the squatter has to bring itself within one of three possible “portals” in order to succeed in the application for registration. Those “portals” are also a basis for defending an action for possession brought by the paper owner after 10 years of the squatter’s adverse possession. What are the “three portals”? The three “portals” are: (i) that it is unconscionable to dispossess the squatter because of an equity in its favour and that the circumstances are such that the squatter should be registered. This requires the squatter to show that the paper owner is or should be estopped from asserting its right to the land because of an encouragement of or acquiescence towards the squatter to treat the land as its own, upon which the squatter has relied to its detriment, so making the paper owner’s assertion of its rights unconscionable; (ii) if the squatter has some other right to the land as well as the necessary period of adverse possession; and (iii) if a reasonable mistake has been made as to boundaries. The first and third portals are by far the most important, in practice. What happens if the paper owner defeats the squatter’s claim but then fails to evict or regularise the squatter’s possession? If the squatter’s application for registration fails then as long as there are no proceedings for possession already on foot, judgment for possession against the squatter within the last two years or eviction of the squatter by court order and the squatter remains in adverse possession for a further period of two years, the squatter can make another application for registration and this time neither the paper owner nor its chargee nor holder of a superior interest or any other interest in the land can successfully object: the three “portals” are irrelevant second time around. What is the status of the squatter’s title once it is registered as proprietor? The squatter’s interest overrides any registered disposition of the land (assuming that its adverse possession amounted to actual occupation) and in all respects the squatter becomes successor in title to the paper owner. The squatter will be bound by interests which bound the land in the hands of the paper owner save as regards registered charges created by the paper owner, the scope of which can also be apportioned over parts of land not subject to the squatter’s registration as proprietor. Useful resources Radley-Gardner, O and Jourdan, S, Adverse Possession (2nd ed, 2011, Bloomsbury Professional) Pain, A, Conveyancer’s Guide to Adverse Possession, (Old regime) (1992, Fourmat Publishing) Gray & Gray, Land Law (7th ed, 2011, OUP) Leading authorities and statutory provisions Sections 96-98 and Schedule 6 of the Land Registration Act 2002 Land Registration (Amendment) Rules 2009 (SI 2009/1996) Buckingham County Council v Moran [1988] EGCS 18  JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] 28 EG 129 Powell v McFarlane (1979) 38 P&CR 452 Seitler’s leading practitioners Judith Bell, Loxley Sarah Hung, RFB Legal  Jayesh Kunwardia, Hodge Jones & Allen Emma Macintyre, Mishcon de Reya Nigel Maguire, Ashton KCJ Kevin Morgan, Carbon Law Partners