Adverse possession – how a trespasser can become an owner

Could you trespass on someone else’s land, act as the owner of it for a long time and on that basis become recognised officially as the new owner?

Surprisingly, that is what the law of this country has allowed, although in recent years the government has clamped down on opportunistic land-grabs.

What is adverse possession?

“Adverse possession” is where a person (the “squatter”) takes over a property and acts as the owner (with the intention to do so), in particular by “exclusively possessing” the property, i.e. excluding other people from it (for example, by fencing off open land or maintaining the locks on a building).

There must be no force used to enter the property and the occupation must not be in secret. Also, permission from the official owner will disqualify the adverse possession.

Acquiring ownership through adverse possession – the historical position

Historically, if the squatter could show adverse possession meeting these fundamental requirements (and some others) for at least 12 continuous years, then the Land Registry would recognise the squatter as the new owner officially.

This has allowed cases of opportunistic dispossession of other people’s land. To take an example, suppose that you owned a small estate and one day you became fed up with looking at the large vacant parcel of overgrown waste land adjoining the south side of your site. You could walk onto the parcel and fence it off, clean it up, even build on it. After 12 years, you could become the official owner!

Some might see this as tantamount to theft. Others might be more sympathetic to the squatter for putting to good use a property in which the official owner shows insufficient interest even to apply to evict a trespasser with a 12 year period.

Acquiring ownership through adverse possession – the revised position since October 2003

Parliament in 2002 decided to curtail the opportunities to acquire official ownership based on adverse possession. However:

• The new law only applied to land registered at the Land Registry. All remaining unregistered land is still fair game for squatting, opportunistic or not.
• The new law applied to registered land only with effect from October 2003. If a squatter, can show 12 years of adverse possession, opportunistic or not, before October 2003, its ability to claim official ownership remains.Even for registered land with adverse possession only after September 2003, the legislation built in a handful of exceptions to ensure that “bona fide” adverse possession could still result in official ownership after the requisite period, which was actually reduced from 12 to 10 years.
  The exception most commonly seen in practice is where a squatter adversely possesses land next to the squatter’s own land in the mistaken but reasonable belief that the squatter owns it. For example, suppose now that you have a boundary wall on the north side of your estate. It looks as though it has been there for years and it was certainly there when you purchased the property around 10 years ago. You then discover that according to the Land Registry’s official boundary plan the first five feet running along your side of the wall is not officially your land, but your neighbour’s. In this situation, the legislation should still allow you to obtain the official ownership of the additional five feet.

Summary

So, whilst obtaining ownership through adverse possession is now a lot harder for the opportunistic land-grabber, it does still give a possible remedy to those who have become de facto owners of land on a good faith basis.

One more caveat though – squatting of residential buildings specifically is now a criminal offence. Whilst squatting a residential building for a number of years in theory could result in a squatter becoming the official owner, the threat of a night in the cells or a much worse punishment should discourage anyone setting out to do so.

Roland Brandman, Associate, Fladgate LLP (rbrandman@fladgate.com)