Whose land is it anyway? A quick guide to adverse possession

Adverse possession is the possession of land without legal entitlement or the owner’s consent. It allows a person who does not have legal title to land to become its rightful owner, simply by being in possession of the land long enough to “oust” the title of the true owner.

There are two regimes which govern adverse possession claims depending on when the possession takes place. Previously the Limitation Act 1980 prevented a legal owner from regaining possession from a squatter who had been in control of land for 12 years and this is still the case for unregistered land. Famously, this enabled many squatters to obtain title to large and expensive properties, often as a result of apathetic management regimes (often by local authorities) and was widely considered to be unduly unfair to landowners.

The Land Registration Act 2002 (“the Act”) therefore, introduced a completely new regime for registered land. It allows an applicant to apply to be registered as proprietor after only 10 years’ adverse possession, however, if an application is made, the registered proprietor can generally resist the application. They then have two years to start legal proceedings to have the squatter ejected, and only if it fails to take action will the squatter be entitled to be registered as the owner. Generally, the applicant must apply to the Land Registry when they are still in possession of the land, but if they are forcibly evicted (without a court order) by the registered owner they will have six months from the date of eviction to make an application.

The above system means that it is now much harder to obtain title via adverse possession against the will of the true owner. However, there are exceptions to the owner’s right to resist an application for adverse possession and the most frequently used is that in Para 5(4) of Schedule 6 of the Act. That applies where the applicant is a neighbour of adjacent land who can prove:

1. that he has been in adverse possession of land within your title for 10 years
2. that the exact boundary line separating the land has not been determined under section 60 of the Act, and
3. that he reasonably believed that the occupied land belonged to him.

The above exception is intended to meet the circumstances where the physical and legal boundaries of the land do not coincide, often as a result of the “general boundaries rule” adopted by the Land Registry (whereby boundaries on title plans are representative and cannot be relied upon to determine the physical boundary on the ground). Where this exception applies therefore, then unless the true owner can show that the neighbour was not in possession of the land for the full period or that his belief was not genuine or was unreasonable, his title will be lost.

The above exception has resulted in many a squatter seeking to justify claims for large plots of neighbouring land in its occupation which go way beyond that in the immediate vicinity of the boundary. However, the case of Dowse vs City of Bradford Metropolitan District Council [2020] has confirmed that the exception is narrower than previously thought.

The case concerned an open area of open land measuring two acres, which Dowse claimed to have possessed for over 10 years. Although on a literal interpretation of the Act the conditions in Para 5(4) of Sch 6 of the Act were satisfied, the judge dismissed the claim on the basis that the two acres of land concerned could not all be deemed to be “adjacent” to land belonging to the applicant. Similarly, Mr Dowse cannot have reasonably believed that all of that land belonged to him. For the exception to apply therefore, the judge confirmed that “the whole (or substantially the whole) of the disputed land must be capable of being described as “adjacent to” the applicant’s land”.

Accordingly, it appears that the courts have now re-tightened the net somewhat such that the exception to the general provisions on adverse possession will only apply in limited circumstances. However, owners of land should always be certain to ensure that they understand their legal rights in respect of their land and take action against any adverse possession as soon as possible. In addition, if there is any uncertainty as to the correct boundaries of land and/or concern that a neighbour may be occupying land belonging to you, prompt advice should always be taken to avoid the risk of permanently losing title to that land.