What is adverse possession?
Adverse possession is possession of land that is not legally yours. A successful adverse possession claim will result in the land being legally owned by you. A situation like this may arise where you have an extra piece of garden that you have possessed since purchasing the house but is not included in your property title.
The law governing adverse possession is contained in Part 9 and Schedule 6 of the Land Registration Act 2002 (the “Act”) but I have summarised the main points below.
How to claim adverse possession
Making a claim of adverse possession requires you to lodge an application with the Land Registry via form ADV1. The criteria for an adverse possession claim is as follows:
For registered land = You have possessed the land and have done so without lease, licence, tenancy or permission, for at least a 10 year period.
For unregistered land = You have possessed the land and have done so without lease, licence, tenancy or permission, for at least a 12 year period.
You will also be required to make a Statutory Declaration/Statement of Truth to support the application. This will need to contain details relating to the period of possession, any boundary features erected including when and how they were erected as well as specifying which section of the Act applies to the application.
Once you make the application, if in the case of an application relating to registered land the proprietor serves notice, you may be required to prove you are entitled to adverse possession of the land by one of the three conditions:
- The applicant ought to be registered as proprietor and it would be unconscionable because of some sort of estoppel (an implied or express promise), to dispossess the applicant.
- For some other reason the applicant is entitled to be the registered proprietor of the land.
- The applicant reasonably believes the land relating to the application belongs to them, and the land is adjacent to the land belonging to them also.
What is noted above is only a concise overview of the conditions. The most detailed and possibly most popular condition used for application is condition 3.
Defending a claim for adverse possession
If you are the registered proprietor of land that someone is making an adverse possession application for, you will be notified of the application.
You may serve a notice as mentioned above which requires the applicant to prove one of the three criteria.
What to do next
If you receive notification your land has had an adverse possession application made against it, you may find it useful to seek professional legal advice (if of course you want to oppose the application!). A solicitor will be able to advise you on the strengths and weaknesses of the applicant’s claim and will be able to gauge how to best approach the situation.
If you would like to make an application for adverse possession, it would always be advisable to seek legal advice before doing so, and you may choose to instruct a solicitor to lodge the application for you to ensure the form has been correctly filled out.
If you would like to make an adverse possession application or if you have been notified one has been made against your land, please contact a member of our Dispute Resolution team on 01494 521301 or by email.