Adverse possession

Before 13 October 2003 a squatter could obtain title to either registered or unregistered land if he could demonstrate 12 years' uninterrupted factual possession and an intention to possess the land. After the expiry of that period, the Limitation Act 1980 prevented the 'paper' owner from recovering possession:

• the 'paper' title to unregistered land was extinguished, and

• the 'paper' title to registered land was held on a statutory trust so the paper owner was obliged to transfer legal title on request to the squatter

If the title to the land is already registered, the claimant steps into the shoes of the registered proprietor and inherits the existing class of title. It is not ‘downgraded’. Where a squatter’s application triggers first registration, possessory title is normally awarded. In Diep, a case involving such an application, the High Court held that the Land Registry’s decision to register the claimant with possessory title was not unlawful or irrational. It was simply applying its declared policy in circumstances where there was no evidence as to who was the paper title owner of the land. The policy struck a balance between the economic and social interests of having title to land established so that it could be freely marketed and protection of the public purse against justified claims for indemnity as a result of mistakes in the register. The Land Registry was entitled to take an ultra-cautious view to protect the public purse, even with a small piece of land.

R (Diep) v Land Registry [2010] All ER (D) 52 (Dec)

The law relating to unregistered land has not been changed. The old rules also continue to apply to registered land where at least 12 years' adverse possession had occurred before 13 October 2003 when Land Registration Act 2002 (LRA 2002) came into force.

Since 13 October 2003 an entirely new set of rules apply to registered land. Under LRA 2002 a squatter may apply to be registered as proprietor after 10 years' adverse possession. If the registered owner requires that application to be dealt with under LRA 2002, Sch 6, para 5, it will be rejected unless the squatter can show:

• it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and the circumstances are such that the applicant ought to be registered as the proprietor

• that the applicant is for some other reason entitled to be registered as the proprietor of the estate, or

• that:

• • the land to which the application relates is adjacent to land belonging to the applicant

  • the exact line of the boundary between the two has not been determined under LRA 2002, s 60

  • for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and

  • the estate to which the application relates was registered more than one year prior to the date of the application

If a squatter's application is refused, he can make a further application for registration if he remains in adverse possession for a further period of two years. That application will succeed unless, during the two years since the first application, the 'paper' owner has taken steps to regain possession of the land, or to put in place a lease or licence to permit continued occupation.

What is 'adverse' possession?

In both pre– and post–LRA 2002 cases, 'possession' means a degree of occupation and physical control over the land. The only intention that the squatter has to demonstrate is an intention to occupy and use the land as his own.

The possession is 'adverse' if it is by someone who has no right or permission to be in possession of the land in question. However, in a limited category of cases a more rigorous definition will apply. Where a squatter completed its period of adverse possession of registered land after the implementation of the Human Rights Act 1998 and before LRA 2002 came into force, the meaning of adverse possession should be reinterpreted so as to comply with the Convention. In the judge's view, possession that was not inconsistent with the true owner's plans could not, in such cases, be regarded as adverse.