Isolated land that is not regularly inspected can sometimes be appropriated without anyone noticing. Farmland is particularly susceptible, as are remote areas of woodland and scrubland within large rural estates. When this continues for a long period of time, there is a risk that you could receive a claim of adverse possession (also known as squatters’ rights).
Adverse possession also occurs with vacant and derelict properties that have been forgotten about or are awaiting redevelopment. Sometimes patches of garden or an access way have been incorporated into a neighbouring property, either in a deliberate land grab or because of inaccurate plans which suggest the neighbour’s garden extends further than it does.
If you own a house or piece of land which someone else is trying to claim belongs to them, then it is important that you seek urgent legal advice. The rules of adverse possession may mean that you are at risk of losing your property if you do not act quickly enough in challenging the claim.
As Selwan Yousif, civil litigation and dispute resolution expert with with Pengelly & Rylands in Tenterden, Kent explains, ‘Adverse possession is a means by which someone who has been in continuous occupation of your property – without your permission and for a long enough period of time – can effectively strip you of your ownership rights and claim the property for themselves.’
How does the right to claim adverse possession arise?
Adverse possession may be claimed where:
- a person (or their predecessor) has taken physical and exclusive control of a property for a set number of years (see below for details); and
- they can show that they have done this without the true owner’s consent, and with the intention of gaining possession of the property in question.
Registered versus unregistered property
The ease with which an adverse possession claim can be fought off depends on whether the title to the property has been registered with the Land Registry.
If it has, then you will be given advance notice that a claim is underfoot and, provided you object and respond to this notice within the prescribed timescale, in most cases the claim will be rejected.
Where the property is unregistered, your ability to defeat a claim will depend not on whether you are able to file the correct paperwork but rather on whether you can produce evidence to show that the criteria needed to establish adverse possession cannot in fact be proven.
Length of possession
The period for which the applicant must have been in control of your property before becoming eligible to make an adverse possession claim is also different, depending on whether title to the property is registered or not:
- for registered property, there must have been at least 10 years’ possession; or
- for unregistered property, there must have been at least 12 years’ possession.
There is a note of caution though, because with registered properties it is possible for a further adverse possession claim to be made if the squatter is allowed to remain in situ for another two years. In this scenario it is highly likely that their claim will be successful, even if opposed. For this reason, it is vitally important that as soon as the first application is rejected, you take immediate and lawful steps to get the squatter off your land and to keep them off going forward.
How a solicitor can help
Our lawyers can help you to assess the merits of an adverse possession claim and suggest a strategy of response. Depending on the strength of your position, this might include:
- carrying out a Land Registry search to determine whether title to your property is registered, and if it is not then helping you to locate your property deeds;
- compiling evidence to prove that the criteria needed to establish adverse possession cannot be made out – which may be done by showing that the period of occupation is not long enough, or that the necessary intention to possess was absent or indeed that the squatter’s presence on your property was with your express consent or permission;
- issuing a robust denial of the claim via a letter and asking that it be withdrawn;
- filing an opposition and counter notice to the application with the Land Registry;
- applying for an injunction to keep the adverse possessor off your land while you wait for their application to be determined – thereby stopping the ‘time’ clock from running;
- negotiating a deal with the adverse possessor, e.g. on terms that they can remain in occupation but under a licence which recognises and preserves your rights of ownership;
- arranging a mediation where it may be possible to achieve a settlement of your dispute with the help of an independent facilitator;
- providing representation for you at a hearing of the application before the First Tier Property Tribunal, should it be necessary for the matter to be formally determined; and
- issuing legal proceedings to recover possession of your property, including where this is necessary to prevent a second application being made to the Land Registry in respect of property which has been registered.
To find out more, please contact Selwan Yousif on 01580 762248 or email advice@pengelly-rylands.co.uk. Pengelly & Rylands has offices in Gravesend, Chatham, Maidstone, Tenterden and Tonbridge.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.