How To Stop Adverse Possession UK

Ian McEwan, Property Disputes Solicitor
Are you wondering how to stop adverse possession?
Is your land occupied by someone without your consent?
Perhaps a neighbour, a squatter, or a trespasser?
Do they claim that they own it?
Have they made an application to acquire it via adverse possession?
Do you need to stop that, and remove them from your land?
This is quite a common scenario, but there are usually several ways to protect your land to stop the other party from acquiring it.
Possibly the best way to do that is to apply to court for an order for possession of the land to have the trespasser removed, which we’ll look at.
There are however a couple of very serious deadlines that you need to be aware of however, which we’ll look at also.
As you’ve found your way to this article I’ll assume that someone is trying to claim land that you own as theirs, and you’re wondering how to stop them from doing that.
The law in this area is quite complex, but I’ve tried to avoid too much legal jargon below. If anything isn’t clear, feel free to get in touch.
Adverse Possession
Claiming adverse possession is commonly referred to as claiming “squatter’s rights”.
It involves a person, or persons (the squatter), applying to be registered as the owner of land that did not originally belong to them on the basis that they have possessed it as if it were their own for the requisite period of time.
Typically it will involve a party trying to annex part of their neighbour’s land onto their own, or someone fencing off some land with the intention of eventually owning it after the passage of time.
There are however plenty of hoops to jump through before you can claim ownership of somebody else’s land.
Challenging the squatter’s ability to comply with those requirements is the best way to stop an adverse possession claim from succeeding if an application has been made, but there are ways of preventing an application from being made in the first place, as we’ll see.
How Long Does The Squatter Need To Possess Your Land For?
Unfortunately we have two adverse possession regimes in the UK, which can complicate matters.
However, generally speaking, someone will need to have possessed your land continuously for at least 10 or 12 years before they can apply to the Land Registry to claim ownership of it via an adverse possession application.
The specific period of possession required will depend upon whether the land in question is “registered” or “unregistered”.
For registered land the requisite period is 10 years.
For unregistered land it’s 12 years.
Don’t worry if your’e not sure which one applies to your situation. It can be ascertained quite easily.
In legal jargon they will actually need to prove both “factual possession” of the land and an “intention to possess” it for the relevant period.
The law in relation to both of these phrases is quite technical, but we’ll look at it briefly in a little while.
How To Stop Adverse Possession In The UK Based On Time?
Obviously, if you can prove that the trespasser has not actually “possessed” your land for 10 or 12 years, as the case may be, you will be able to defeat their application.
How can you do that?
There are several ways.
As part of the adverse possession application process the Land Registry will give you, the “paper owner” of the land, the opportunity to make representations about the application that has been made.
You will be able to set out in a witness statement how you, or perhaps your family, have actually used the land in question during the alleged period and that the trespasser therefore hasn’t used it continuously, or at all.
You can include photographs, surveys, and evidence from other neighbours or landowners who are familiar with the situation and support your position.
How To Stop Adverse Possession Based On Factual Possession
To succeed with a claim for adverse possession, factual possession must be proved.
Factual possession is said to signify an appropriate degree of physical control.
This broadly requires the applicant to show that they have been dealing with the land in question in the same manner in which an occupying owner might deal with it, and that nobody else has done so during the requisite period.
The case law suggests that fencing off land is good evidence of factual possession, but not always conclusive.
It follows that to stop a claim for adverse possession, based on factual possession, you need to show that the applicant did not in fact deal with the land as if it were the owner.
You could do this by showing that in fact you (or some other party) have used and possessed the land as owner in some way during the period to which the application relates, essentially interfering with their alleged occupation of it.
If during the course of the application period the squatter has acknowledge your ownership of the land it is unlikely that they could have factually possessed it prior to that.
That leads on nicely to the next requirement.
How To Stop Adverse Possession In The UK Based On An Intention To Possess
It has been said that where factual possession has been established an intention to possess will be established also, but that is not always the case.
An intention to own or acquire the land is not what is required.
An intention to possess involves an intention to possess the land at the exclusion of all others.
The most common way to defeat such a claim is by proving that rather than being in possession on an “adverse” basis, the application actually did so with permission, perhaps under a lease or licence.
It is quite common for one party to allow another onto their land. If the property in possession has acknowledged that they’ve been permitted to enter it then you may be able to stop adverse possession of your land.
It would be hard to argue that one has the requisite intention to possess when they have recognised that ownership belongs to you.
How To Stop Adverse Possession In The UK By Interruption
In certain circumstances it is possible to interrupt a period of adverse possession so that the clock stops and the party claiming ownership would have to start all over again.
We’ll look at the possibilities now, some of which I’ve touched upon already.
Apply To Court For A Possession Order
Possibly the most definitive way to stop adverse possession is to apply to court for a simple possession order to have the squatting party removed.
A successful application will acknowledge your ownership of the land and require the squatting party to leave.
If they do not you can apply for the court bailiffs to physically remove them.
This is a good option, which we use regularly (see the case study below).
Prove That The Squatter Has Left At Some Point
If the squatter no longer possesses the land in dispute it follows that their period of alleged possession come to an end which should defeat their claim.
A further way to stop adverse possession using this method is to show that the squatter, at some point during the period of alleged possession ceased to possess and subsequently came back at a later date, such that the first period of possession is no longer relevant and the clock only started to run again when they returned.
Acknowledgment Of Your Ownership
If the squatter has acknowledged your ownership of the land in question, their period of alleged possession will be interrupted.
The same is true if he or she has paid you to use the land – you would not do that it you were treating the land as your own – so the payment of rent or a licence fee should stop adverse possession of your land from being succeeding.
Case Study
- I recently acted for the owner of several garages in Greater London.
- My client lives in a different part of the country, and sometimes goes long periods without visiting his garages.
- On trying to inspect the garages one day he found that the owner of the land next to them had fenced across the entrance and was using them for storage.
- We wrote to the neighbour and asked them to cease doing that, to remove the fencing and to give up possession of the land.
- They refused and tried to claim the land as their own.
- Consequently we applied to court for an order for possession, which was granted.
- The court accepted that my client owned the land and that the trespasser had no right to be there.
- We got the land back, stopped the neighbour from applying for adverse possession, and also got an order for the neighbour to pay my client’s legal costs.
- If we hadn’t made the application, the neighbour could have applied to register the land as their own in due course.
How To Stop Adverse Possession After An Application Has Been Made – Registered Land
All of the above methods are relevant where an application for adverse possession of both registered and unregistered land could be made, or has been made.
But the paper owner of Registered Land has greater protection than the owner of Unregistered Land.
That is because the application process is different, and includes some additional safeguards for registered landowners.
The Adverse Possession Application Process – Registered Land
The Application
A squatter seeking to apply for adverse possession of registered land must make an application to the Land Registry using a very specific form accompanied by a “statutory declaration” and the evidence in support of their application to prove that it has been in adverse possession of the land in question for the relevant period.
That will involve proving factual possession and an intention to possess.
Notification
Various parties will be notified of the application by the Lands Registrar, including you, the registered owner.
It is therefore very important to keep your contact details up-to-date at the Land Registry.
Counter-Notice
Upon receipt of notice that an application for adverse possession of your land has been made you need to decide whether or not you want to challenge the application.
Presumably you do!
You do that by filing a counter-notice in a prescribe format, which has the effect of requiring the Registrar to reject the application unless the applicant can establish one of three conditions (discussed below).
The counter-notice must be served before 12 noon on the 65th business day after the date that the Registrar’s notice to you was issued.
If a counter-notice is not served within that period the Registrar is required to register the squatter as the owner of the land subject to the application.
So you can see how important it is to serve a counter in time.
If the applicant can establish one of the three conditions below after a counter-notice has been served it will be registered as the owner of the land.
Condition 1 – Estoppel
To establish this ground the application would have to show:
- It would be unconscionable because of an equity for the applicant to be dispossessed of the land; and
- The circumstances are such that the applicant ought to be registered as the owner.
The idea behind this is to protect someone who has been encouraged or allowed to believe that they owned the land in question and where that person has gone on to act to their detriment in some way in reliance upon that belief.
Incurring costs on the land in some way, and/or and giving up rights in relation to other land are examples where this condition might be satisfied.
Condition 2 – “Some Other Right”
To establish this condition the applicant will need to show that they have some other right (other than adverse possession) that entitled them to be registered as the owner.
In practice it is rare for this condition to be relied upon. Almost any scenario where it seems potentially relevant would seem to be covered by satisfying condition 1 above.
Condition 3 – Reasonable Mistake on The Boundaries
To establish this condition the applicant needs to establish:
- The land subject to the application is adjacent to other land owned by the applicant;
- There must not have been an exact determination of the boundary in question;
- The applicant and any predecessor to them must have reasonably believed that they owned the land for at least ten years; and
- The land must have been registered more than a year before the application was made.
This condition is in place to recognise the “General Boundaries Rule” which states that a boundary is not conclusive as to its location unless it has been determined and that determination has been registered.
See my article on trespassing neighbours for more information on this rule.
Where The Applicant Establishes A Condition
If the applicant establishes one of the three conditions above after the paper owner has served a counter-notice, the applicant can be registered as the owner of the land .
Where Applicant Fails to Establish A Condition
If the applicant fails to establish one of the three conditions above after the paper owner has served a counter-notice, the application for adverse possession will be rejected.
What Next?
If you stop an adverse possession claim from succeeding that is not the end of matters.
You still need to get possession back!
If you don’t the squatter will be given a second chance to apply to be the owner via adverse possession (see further below).
Letter For Possession
If the adverse possession claim has failed, you or your solicitors should write a formal letter to the squatter straightaway requiring them to give up possession.
Court Order For Possession
If the squatter still won’t leave it is very important that you apply to court for an order for possession of the land.
If you don’t do that, all of the hard work that has gone before in resisting the application could be undone, as we’ll see below.
The Applicant’s Second Chance
A squatting party is allowed to submit a second application for adverse possession of the land if:
- It’s first application was rejected; and
- It remains in adverse possession of the land for a further two years.
Its application will however be denied if:
- Proceedings for possession of the land have been issued; or
- An order for possession of the land has given in the previous two years; or
- The applicant has been evicted from the land pursuant to an order for possession.
So, in effect, the owner of the land has two years to protect its land before the squatter can make a second application.
How To Stop Adverse Possession UK
I hope that this article has given you an idea of how you can stop someone from claiming adverse possession of your land.
If an application for adverse possession hasn’t yet been made, applying to court for an order for possession is probably your best bet.
If an application has been made its important to reply promptly and the options available to you in terms of opposing the application and what happens after that will depend upon whether the land in question is registered or unregistered,
If someone is trespassing on your land, if they are claiming ownership of it, or if you need to stop an adverse possession application, feel free to get in touch. I’d be happy to discuss this with you.
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