Blocking an application for ownership of your land

Adverse possession can affect anyone who owns property. Our Property Dispute Resolution team breaks down the legalities for you.

Lodders’ Property Dispute Resolution team discuss what to do when someone makes a claim to register your land to themselves by adverse possession.

It is not uncommon, particularly when preparing for a sale of land, for a party to realise that they may have been using part of their neighbour’s land for years and therefore seeking to become registered as the legal owner. Equally in some cases, a party may seek to claim ownership of land which does not adjoin their own property for various reasons.

The Land Registration Act 2002 (LRA 2002) created two separate paths for dealing with adverse possession claims depending on the date of possession and whether the land is registered or unregistered.

Common to both rules are two requirements that must be met to prove adverse possession:

The basic requirements for land possession

In order to apply for adverse possession of land, there are four principal elements which must be satisfied:

1. Physical occupation of the land;
2. The intention to occupy the land as one’s own to the exclusion of all others, including the legal owner;
3. Occupation of the land without the consent of the legal owner;
4. For the required period of time.

Registered or unregistered land?

The method of application for adverse possession differs depending on whether the land in question is registered at the Land Registry or unregistered.

For registered land, an applicant must show that he has occupied the land for at least ten years; this rises to 12 years for unregistered land and rises even further to 30 years where the relevant land is owned by the Crown..

Regardless of whether the land is registered or unregistered, all applications must be supported by evidence.

What sort of evidence is required to support an application?

• Physical evidence – for example, fencing is strong evidence of factual possession but is not critical; changes in planting on agricultural land, showing a change between grass and cropland; evidence of historic walls/fences; hedges.
• Photographs showing enclosure over time – for example, in residential properties it is common to have photographs of family in the garden over the years or of building works carried out. Aerial photographs or Google Earth images can also be very useful.
• Statements – witness evidence of occupiers of the land and neighbours with relevant knowledge. Statements from predecessors in title are also crucial if the current owner has not been in occupation of the land for the relevant time period.

How can I object to an application?

The Land Registry will notify the  registered legal owner of the land, where that is known, or any person who, from the information available or from the Land Registry’s local knowledge, may have an interest in the land, and give them a time period to respond. .

Once notice of an application is received any party is entitled to object.  If the Land Registrar considers the objection is groundless the application can be determined and the land registered to the Applicant. If it is not groundless then both parties will be given an opportunity to negotiate. Unless matters are resolved however the matter will be referred to the Tribunal to be determined. The tribunal will then either set a date for hearing and determining the matter or direct one of the parties to start proceedings in court.

If no response is received, then providing the Land Registry are satisfied that the application on the face of it meets the basic requirements, the applicant will be registered as the legal owner.

Additional Requirements for Registered Land

With registered land, the applicant has additional requirements to overcome for a successful application and an objector can force the applicant to prove that it can rely on one of three specific grounds:

1. that it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the circumstances are such that the squatter ought to be registered as the proprietor;
2. the squatter is for some other reason entitled to be registered as the proprietor;
3. the squatter has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined under section 60 of the Land Registration Act 2002 and the estate to which the application relates was registered more than a year prior to the date of the application.

The third ground is the ground most commonly relied upon. If an Applicant cannot prove one of these grounds the application must be rejected and therefore this can be a “knock-out” blow.

Class of title

If an application is successful you should also note that the Land Registry can grant two different classes of title – absolute or possessory (which can later be converted to absolute). A possessory title can be challenged by someone who claims to have a better title to the property and it may also be subject to uncertain third party rights.

Appointing solicitors

There are a number of technical nuances in making an application and failure to make the application in the right way at the outset could result in a genuine application failing when it should not have done. It is therefore always sensible to seek advice at the outset of the matter. If a matter is referred to the Tribunal or the Court it is important to seek proper advice on the merits of the dispute and on the procedure involved an likely costs.

Points to Note

It is critical to ensure that your address is always kept up to date at the Land Registry. Our team has recently advised on a matter where that failure led to notice of an adverse possession application not being received and a third party successfully being registered as the owner of our client’s land. Had the client received the original notice they would have been able to object to the application and most likely the application would have been rejected because it did not meet the basic requirements

More information

If you require bespoke advice in relation to your specific case, our experts can assist you. For more information, or for an initial chat, please get in touch with our Property Dispute Resolution team.

Our answers should not be considered as formal legal advice as the background of any situation may affect the advice that we give.