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Making a claim for adverse possession

3rd November 2015

Claiming adverse possession, also known as squatter’s rights, means applying to the Land Registry to become the legal owner of property or land that you have been occupying without permission, or objection from the owner, for over 12 years.

Laura Pyatt, associate solicitor in the commercial property team, explains the process of applying for adverse possession and what you must demonstrate to qualify.

In order to make a claim for adverse possession, you must be able to demonstrate the following:

  • factual possession of the land;
  • an intention to possess the land; and
  • that the possession has been without the consent of the owner.

If the land is unregistered, you must show continuous possession for at least 12 years Possession of the land by another squatter can make up the 12 years, but you have to be able to provide evidence. For registered land, this has been reduced to 10 years for registered land.

Factual possession

Exclusive occupation of the land must be demonstrated for the full time period. It will be considered on a case by case basis by the Land Registry. Elements such as fencing, walls and hedges will assist in demonstrating such possession.

Intention to possess the land

You must show an intention to possess the land and that you have excluded others from using it. For example, there should be no sharing the possession of the land with the owner or other third parties who are not making a claim.

Showing possession without the consent of the owner

The land must be occupied without consent. If possession of the land is granted by of a lease, licence or even oral permission, you will not qualify.

The recent case of Smith v Frankland and another [2015] highlights the need to prove all the elements to win adverse possession.

In this case the claimant sought adverse possession of a garage and vegetation land together with areas of hardstanding that lay to the west and front of the garage. The garage was used by the claimant for storage, and had been used as such for the requisite period of time. The other land was used for car parking from time to time by a third party who was a licensee of the claimant. The claim in respect of the garage succeeded on the basis of it being enclosed and also used to the exclusion of others. In relation to the other land however, as the boundaries were not clear, enclosed nor marked with specific boundary features, and it was used by a third party, the claim failed.

It was determined that it was insufficient to simply argue that the other land should also have a successful claim by virtue of being linked to the garage. This was due to the fact that they were both being used for differing purposes and the other land was also being used by a third party.

Exceptions

In some cases you will not be able to make an application, even if you fit the three requirements above and legal advice should be sought in this event.

Making an application

Before making your application to the Land Registry it is important to get expert legal advice on the strength of your claim. We will advise you on the best course of action and to ensure you have sufficient evidence and the relevant documentation to support your case.

The commercial property team at Ansons Solicitors has offices in Cannock and Lichfield. We can help advise you on your situation and help you build a claim that will satisfy all the necessary requirements. For further information please contact Laura Pyatt on 01543 431 181 or email lpyatt@ansonssolicitors.com.