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Adverse Possession Forum

A Little History
Claiming Adverse Possession
The New Law - Registered Land
The New Law - Un-registered Land
Human Rights
Private Road Disputes
Reference & Legislation
Conclusions

A Little History

Land ownership evolved from land that was in the possession of the occupier. From there it was used as a form of currency by past monarchs and local lords. By bestowing title of land the King obtained the services of the Lord, who in tern obtained the services of lesser nobles, down through to the commoners. However it was always possible to disposes one landowner by occupying his land. From this evolved the basis of common law (nineteenths of the law is possession), this became formalised with the Law of Property Act 1925, and subsequently with the Limitations Act 1980. There has over time arguably been more litigation over land disputes than any other branch of law outside of criminal law, and within land law adverse possession has a significant degree of litigation. With the bringing into force of the Land Registration Act 2003 we have a process that has now become more certain, albeit in some cases it will be more difficult to register the land, but to those with a genuine adverse land claim the process should enable a swifter conclusion to the process, with a more certain outcome.

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Claiming Adverse Possession

The basics of the present adverse possession process is that a person occupying land (which includes buildings) as a trespasser for a period of 10 years (registered land) or 12 years (unregistered land) can apply to the Land Registry to register title to that land. On registration they effectively become the owners of the land.

The type of land that could come under this procedure is extensive, the only partial exception being Crown Land which has a 30 year rather than a 10 or 12 year time span before adverse possession can be registered. It could range from houses to factories, shops to leisure facilities, from open land to whole farms. The most common is likely to be boundaries and other minor encroachments where borders are extended over the years. The next category is likely to be housing, followed by the odd field.

If a trespasser can prove open, adverse and exclusive occupation of land, coupled to an intention to occupy, for a continuous period of ten or twelve years, and the relevant conditions are met then the documentary owner of the land will lose the right to sue the squatter for trespass, thus effectively transferring the ownership of the land passes to the squatter.

The squatter can apply to the Land Registry to be named as the owner of the land but, although the effect of establishing adverse possession is to defeat the title of the paper owner, the squatter takes possession under the same terms as the true owner, this includes any rights and obligations set out in the title document. Thus if the property was subject to burdens such as restrictive covenants or easements prior to the squatter obtaining ownership of it, these will continue to apply.

Whether the trespasser can show the necessary possession, coupled to the intention to occupy, thereby establishing a claim, would be a matter of fact in each individual case. All such applications should only be lodged after carefully ensuring that the rules have been followed, or the squatter runs the risk of being defeated, and having the true owner reclaim the land.

Possession of the property must be exclusive and not in secret. In as far as intention is concerned, what the trespasser needs to show is an intention to exclude the world at large from the property, that is as far as it is reasonably practicable to do (changing the locks, putting up fences.). Crucially, what the trespasser does not have to show is an intention to own the property. In the leading court case dealing with this question Buckinghamshire County Council v Moran, the trespasser occupied land belonging to the Council which was earmarked for highways use in the future. The trespasser only ever intended to occupy the land until the land was taken for that purpose, but this was held not to be fatal to the claim.

It has been held that fencing or enclosing of a property is the strongest possible evidence of adverse possession but if the fencing is only transitory in nature, it may not be enough. In Basildon District Council v Charge, a fence was erected in order to allow geese to be kept on the site which was subsequently removed when the geese ceased to be raised there. The transitory nature of the occupation was held to be insufficient to found a claim based on adverse possession.

Under sections 29 to 31 of the Limitation Act 1980, if a trespasser makes a written acknowledgement to the true owner that the true owner has the better title to the land, the twelve year period begins to run again for the purposes of establishing adverse possession. There is no set formula of words that will amount to an acknowledgement for these purposes: instead this will be a matter of fact in each case. The relevant cases on this point are Archangel v Lambeth LBC and Lambeth LBC v Bigden. This aspect no longer applies to registered land.

In both Archangel and Bigden properties belonging to Lambeth LBC had been occupied for a number of years by squatters. In Bigden, the Council announced a plan to sell the freehold of the property to a housing association. In response, the squatters organised a petition which was sent to the Council, headed 'Petition from residents of Oval Mansions against the sale of our homes to Ujima Housing Association by Lambeth Council.' In Archangel, the squatter wrote to the Council's Grant Liaison Department requesting funding in order to refurbish the property, stating 'We have been applying for funds vigorously in the last quarter which is to be used in refurbishing Lambeth's property.' In both cases, the Court held that the squatters had accepted that the Council had better title and ownership to the property and their claims for adverse possession failed.

This demonstrates the need to ensure that squatters put nothing in relation to the occupation of the property, or whether another person might have a better claim to possession. As the decisions in those cases show, just a short sentence can mean the difference between the true owner continuing to enjoy ownership of their property and finding it taken from them by operation of the law.

It is often implied that land which is unregistered, is not owned. This is not true - all land in England and Wales is owned by someone. Even where an owner, if an individual, has died without leaving a will or near relatives, or, if a company has been dissolved, there will be an owner - usually the Treasury Solicitor on behalf of the Crown. It is also often implied that because land remains unregistered, either the owner cannot be traced or the land has been abandoned. This is not so. Some land remains unregistered simply because it has not changed hands since compulsory land registration was first introduced to the area in question.

An owner of land can lose his or her ownership (whether it be of registered or unregistered land) after there has been uninterrupted "adverse possession". The relevant period is never less than 12 years. In the case of the Crown's ownership (for example, Ministry of Defence land) the relevant period is never less than 30 years.

Unless you have actually done things on the land, such as fenced and occupied it without permission, which amount to adverse possession, you will have no rights at all. Even if you are in adverse possession then the true owner could have you removed from the land if he or she takes action before the relevant period has ended.

To register a caution against first registration involves completing an application form which includes a Statutory Declaration (form CT1 available from the Land Registry) giving details of your use and occupation of the land. The form must be taken to a Commissioner for Oaths (for example, a practising solicitor) for you to confirm before him or her that the information in the Statutory Declaration is true. You do not become the registered owner, all that it means is that the Land Registry would notify you of any application for the first registration of the land affected by your caution. For example, if an application was received to register the land against which you had lodged a caution, the Land Registry would inform you in writing and you would be given time in which to object to the application.

If you objected you would have to prove that you had a better title to the land than the applicant. If agreement could not be reached, and you did not withdraw your objection and the applicant did not withdraw his or her application, then eventually there would have to be a hearing (similar to a court hearing) before The Solicitor to HM Land Registry. Alternatively, instead of hearing the matter himself, the Solicitor to HM Land Registry could refer it to the High Court.

However you should keep in mind that under section 56(3) of the Land Registration Act 1925, if you lodge a caution without reasonable cause, you may have to compensate any person who sustains damage as a result. You must therefore weigh up the odds, if on the one hand you do not lodge a first caution, and then someone else registers the caution, you would be at a disadvantage in having to prove a greater claim than the other squatter. On the other hand if you do register the caution then you could end up paying damages. In our view, all being equal, and you being the honest person that you are, would ensure that everything about your application was true, and correct, you would in most cases be better off by registering the first caution.

Possessory title is one of the kinds of title the Chief Land Registrar can grant when land is registered. It is not as good as absolute title which is the title granted in the vast majority of cases. One important consequence of having a possessory title is that if the true owner applies for rectification of your title before the relevant period has ended, then the title will be closed and you will not receive any compensation from the Land Registry for losing your possessory title.

In the case where you have purchased a property, and the previous owner had used the squatted land, then you can add their period of adverse possession to yours to make up the required twelve year period.

It was held in Mayor & Burgesses of the London Borough of Lambeth v Blackburn that a squatter in local authority premises who had been in possession for more than 12 years who had moved in quite expecting to be evicted, and who had been prepared at all time to take a tenancy if it was offered, but always intended to remain until actually evicted was entitled to claim adverse possession. The intention that a squatter must have to establish adverse possession is simply the intention to take possession of the property for the time being. Having an expectation that realistically he might have to leave at some date in the future does not undermine his current intention to possession, nor does an intention to leave in the future if circumstances make it appropriate.

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Private Road Disputes

Residents who cannot trace the owner of a private road, and who take over control of it, can apply to the Land Registry to register a title to the road, on the basis of adverse possession But such applications do not often succeed. There are a number of reasons why a claim might fail - for example, there has not been a sufficient degree of control over the road, control has been shared with others, the true owner has consented to the control, or the adverse possession has not lasted continuously for 12 years.

A more fruitful approach may be to rely on the presumption that frontagers own half the width of the road along their frontage. Between them, residents may thus own the whole of the road, and may transfer it to a company or to trustees to hold on behalf of a residents' association. (The exercise may still be worthwhile even if one or more frontagers decline to participate, but most of the road can be transferred into collective ownership.) The transfer must take place under the registered system of land transfer, and the appropriate District Land Registry may be able to offer guidance on carrying out the transfer.

Where land was registered before a private road has been laid out, the presumption is unlikely to apply, so this method of proceeding will not be available. The roadway may become registered after it has been laid out, in which case the Land Register will reveal who the owner is. Special rules apply where land belonged to a company which no longer exists: the land is "bona vacantia" (property without an owner) and passes to the Crown.

An important recent case on adverse possession in private roads is Simpson v. Fergus (2000) 79 P&CR 398, in which the Court refused to accept a claim by a landowner who had marked out parking places in a private road, and stopped others using them, but who had not actually fenced them off. Keep firmly in mind that Highways (which includes paths) cannot be registered through the adverse possession process, thus a distinction has to be made between a highway and a private way.

What happens if a highway is blocked up unlawfully, by a neighbouring landowner, and treated as his private property, and the highway authority takes no action? Does the land cease to be a highway, and does the highway authority lose ownership of it? The rule is "once a highway, always a highway", and unless the highway is "stopped up" by an order from the magistrates' court, the public's right to use it presumably continues. As to ownership, the point has not, as far as we know, been considered by the courts. Since Parliament has said that ownership of a highway maintainable at the public expense vests in (i. e. goes to) to the highway authority (s. 263 of the Highways Act 1980), the courts might well be reluctant to allow ownership to be lost to a person in adverse possession, especially since blocking a highway is a criminal offence (Robinson v. Adair, and Hanning v Top Deck Travel). On the other hand, Parliament has also passed the Limitation Act 1980, which is the basis for claims of adverse possession.

Other questions might also arise in this situation. For example, suppose that a highway authority "rediscovered" a highway, long after it had been blocked up by (say) a neighbouring landowner, and treated as his own. Would the highway authority be acting lawfully, within the principles of administrative law, in re-opening the highway? Or should they acknowledge that it had ceased to be of any use to the public, and put things in order by applying to the magistrates for a stopping-up order?

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Human Rights

In Family Housing Association v Donellan & ors it was held that the law of adverse possession is compatible with Article 1 of the First Protocol of the European Convention on Human Rights & Fundamental Principles (Protection of Property). The non-deprivation provision in Article 1 is directed only against appropriations by or authorised by the state for public purposes and not what are essentially private law matters.

The Convention gives people the right to the protection of their property (Article 1 of the First Protocol) and the right to peaceful enjoyment of their possessions (Article 8). As well as the main ruling on human rights, the Court also held that it was in the public interest for the time limit to continue in order to promote social stability by the protection of established and peaceful possession of property. Whilst the Courts have shut the door on this particular defence, at least for the time being, the Courts did point out that the 12-year time limit for bringing actions was generous and that it was not unduly difficult for landowners to defeat such claims.

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The New Law - Un-registered Land

The Law Commission in a report in 1998 has recommended that the law relating to adverse possession be simplified so as to protect landowners with a registered title against the loss of their property. This has now become the Land Registration Act 2003. The Act has profound implications for adverse possession, changing much of the present legal structure, making it more difficult to obtain adverse possession, but also ensuring greater rights once the limitation period of two years after final registration has passed.

When land registration was first contemplated, there was an understandable wish on the part of those establishing this new principle of title that the fact of registration should eclipse title by adverse possession; the two were not considered to be compatible bedfellows. However, the principle (of title by adverse possession) was to prove of too long standing simply to be consigned to the back shelf of history and, instead, the concept of a trust was implied (by Section 75(1) of the Land Registration Act 1925), the registered title owner being deemed to hold on trust for the person "who by virtue of the Limitation Acts has acquired title against the (registered) proprietor".

In its Report entitled "Land Registration for the Twenty-First Century", the Law Commission, amongst its various acknowledgements, comments that there remains little compelling argument to retain the deemed trust, that it serves only to give rise to more difficulties in an area already beset by problems and that it should go. There is a further case put forward that there is now no real need to attempt to reconcile the irreconcilable - a set of rules founded on a possession-based system (unregistered title) and a further distinct set of rules basing title upon the fact of registration (registered title). The Law Commission stopped short of suggesting abolishing title by adverse possession altogether, on the basis that there are some cases where it remains justified, it cites just four examples:

  1. Where the paper owner is untraceable;
  2. Where there have been dealings "off the register";
  3. Where there is inconclusive evidence on the register (usually boundary disputes); and
  4. Where entry into possession occurred on reasonable mistake as to entitlement and where rectification would cause greater hardship.

The argument is that, without some acknowledgement of the "squatter's rights", the subject land would effectively become incapable of dealing. It would be untouchable!

  1. a system of now computer-based land registration, incorporating a guarantee backed by Government and
  2. title acquired by adverse possession, is too fundamental to be capable of resolution and that finally this fact must be faced.

Although the time limit within which the squatter may claim to be registered is to be reduced to ten years (from 12 years), the Land Registry, having ensured that the applicant has established this time-based condition, will then notify the registered proprietor of the subject property of the fact of the squatter's application. The registered proprietor will have two years within which to object to the application.

The steps and processes to be taken into account are set out in Sections 96 to 98 and Schedule 6 of the Land Registration Act 2002, and paragraphs 187 through to 194 of The Land Registration Rules 2003 (S.I. No 1417) as well as Schedule 8 to the Rules. The Land Registry also produce briefings and information sheets, links are found below in the reference section. The New Act makes a distinction between Registed Land and Unregistered Land, with two seporate procedures. The provisons relating to registered land do not come into force until the 13th October 2004, whilst those for unregistered land like the main body of the Act comes into force on the 13th October 2003.

The relating to unregistered land remains roughly the same as it was under the previous regime. The processes are set out in the Land Registry Practice Guide 5. Before the Land Registry will even process an application for unregistered land the squatter will need to demonstrate to them the following 4 factual tests:

In order not to have to set out what each of these tests mean it is far better that you refer to Section 3 of Practice Guide 5

. There are two limitation periods the standard 12 year period which still applies, and includes most land, the exceptions being crown land, and those by spritual corporations such as vicars and bishops, when the period is 30 years. Adverse possessiion cannot be registered until after those periods have expiered. As always a squatter can pass on, or even sell his right, and the successive periods of squatting will count towards the relevant period, thus a father who dies and leaves the squatted land to his child will not have the rights so far accrued taken away. The interesting thin is though that say someone squats the land, but in his absense another squats the land the second squatter can claim both periods towards the relevant period. Although the first squatter could bring possession proceedings against the second squatter up to 2006.

The application is made on form FR1, you must make sure you complete the form in plain English, complete all sections attach any evidence to support the points that must be proven, and particularly make sure that the declaration is signed. Evidence should also have a declaration attached which usually means that you go to your local solicitor, no appointment is usually necessary, most charge between 5 to 10, this should not really be any solicitor that is either acting for you, or is likely to act for you on the registration. I have on occations simply gone to the local county or magistrates court and asked a friendly looking solicitor who is waiting for his case to come up to swear the declaration, most then will not charge.

In Section 5 of Practice Guide 5 it sets out a useful list of the type of evidence that might be included in your submission. Although this is not definitive, you should attempt to deal with as many of the points as are relevant, but also be far more far reaching. Look to include statements from others who can support your claim, especially if those persons could be said to be independent, for example if you was squatting a house the postman or milkman migt be able to say how long they have known you have been in occupation. Also you might have evience of paying rates, electrict or other untilities for the property. Be as wide ranging as you can.

A First Caution can only be registered for the first two years after the 12 year period, in which case it would seem to be much more logical to get on with making the First Registration application, in this way the issue is resolved that much sooner.

The Land Registry will inform any known owners of the land,and if any one objects and the issue cannot be settled amicably by the parties, then it will in the first instance be addressed to an Adjudicator who will either hold an inquiry into the case, or will refer it to the courts for determination. If the squatter loses this can be expensive as the costs of the owner will have to be paid, so it is vitally important that you get your case straight before you seek registration, after all you have had up to 12 years to do that.

There are some transitional issues between the old system and the new system but by and large they simply mean tat an existing right is protect as under the old law, the datebetween the two system being the 13th October 2003.

The New Law - Registered Land

Adverse possion on registered land has undergone a fundamental chage under thenew law. The first change is that the timeperiod has changed from 12 to 10 years, with a two year period for challenges to be made in before the squatter gains full rights to te land. It also means that any registered owner will be formally notified of the application, and stringent controls to uphold the true owners rights. The process is set out fully in the Land Registry - Practice Guide 4.

The reality is that it is likely that only where an application is not contested will the land be registered to the squatter. The only exceptions to that are:

The other way that land could be registered is if after the first rejection of an aplication to register the land the squatter remains in possession for a further two years, he will be able to re-apply, and with only a few exceptions will be registered even if any one opposes the application or not.

The grounds to be proven are the same as those for un-registered land, as already set out above. An application must be made on form ADV1. Much of the process for unregistered land equally applies to registered land so I shall not repeat it. Where the Land Registry accept the application as valid they will then inform the registered owner and other relevant people, who will have 65 working days to respond. If no objectiion is received, or no counter notice is served, then the squatter will be registered at the end of the two year period.

The same process takes place where an objection is lodged to that of unregistered land. Where a counter notice is served then if the squatter has in his application relied upon any of the 3 points set out above, and the Registra conciders that he has an arguable case then the matter will be refered for adjudication. Before setting out to register land you should look carefully at section 8 of Practice Guide 4 whih deals with the process in detail. If a counter notice is served, and the squatter has not relied upon one of the 3 points then the application will be rejected. Where the quatters aplication is rejected and he is still in possession, and he re-applies under the two year rule, then unless the squatter is a defendant in possession proceedings, or judgment has been given against him for possession in the previous two years, or has actually been ejected because of a judgment for possession, then he must be regstered.

CONCLUSION

Adverse possession is a powerful tool if used wisely, it can effectively be used as a tool for the near 'free' re-distribution of land. It can allow more certainty for those who have rightly or wrongly managed to extend their property or access. However the tool must be used rarely, or risk the right being taken away. The process should be undertaken immediately after the relevant period has been passed. Throughout the period of squatting evidence should be kept, documenting every stage of the lands occupation.

One thing is very certain the new procedures will undoubtably ensure that litigation lawyers will not go short of work, as many disputes will need to be settled through the courts. It will also potentially result in a specialised area of the law being established.

Enjoy.

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REFERENCES

http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldbills/002/2002002.pdf

(c)Planning Sanity - November 2003 (can be freely used by local communities within their campaigns. Publication by third parties is permitted providing acknowledgement of Planning Sanity is given)

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