Monday, 25 April 2016

Adverse Possession - 1066 and all that

For William the Conqueror, possession was not nine tenths of the law, it was ten tenths.  In the thousand years since then and still today (save for the last 13 years in the case of registered land) physical possession has been the foundation of land ownership under English law.

Adverse possession of land (sometimes known as ‘squatters rights’) is when someone is in physical possession of the land, without the express permission of the owner on the deeds.  After 12 years adverse possession, the prior owner will be time barred from recovering the land, which will then belong to the squatter.

There are qualifications to this.  The squatter must demonstrate ownership intention (for example, in the case of a field, by fencing it off and working it) and may not occupy the land by “force or secrecy” but otherwise, if he can prove 12 years possession (by statutory declaration and such other independent evidence – e.g. of payment of rates and bills – as can be provided) then he can apply to the government Land Registry to be registered as the new owner.

The main qualification, since 2003, is with registered land, i.e. of which the ownership has already been registered at the Land Registry, being the case now with most land in the country.   The old rules continue to apply only to unregistered land (i.e. where the owner on the deeds has not yet applied to become a registered owner).   It is still possible, under the new rules, for a squatter to apply to the Land Registry for ownership of already registered land by virtue of adverse possession but notice of the application would be given to the prior registered owner, who can then defeat the squatter’s claim by mere objection to it.

The result of the new rules is rather odd, in that ownership of land is decided (once there has been adverse possession) by simple process rather than underlying land law and can be lost by an easy oversight on the part of the prior registered owner.   A practice point for registered owners who are not owner/occupiers is to ensure that the Land Registry has their up to date contact addresses.  

Land law is complex and the above is necessarily a simplification of the rules but these are still an example of how English common law is rooted in pragmatism.

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