Adverse possession: when squatting becomes a legal issue

Most people are familiar with the term ‘squatting’ when used to describe the unauthorised occupation of property, but it is less well known that it can have long term ramifications for property owners.

The law of adverse possession

The law of adverse possession is based on the principle that, if an owner of land does not prevent a trespasser from occupying the land for long enough then the trespasser (or squatter) can gain legal title to it – i.e. cannot be evicted and essentially secures ownership. This might involve relatively small pieces of land on the boundary between two properties, but it can also involve much larger stretches of land.

In any claim for adverse possession there are three key ingredients:

• an intention to possess the land in question (as against an intention to own the land)
• factual possession of that land and
• the absence of consent from the owner of the land.

Dealing with these points in turn, an intention to possess the land requires the trespasser to demonstrate a deliberate (i.e. not accidental) intention to exclude all others from the land. Factual possession is closely interlinked with this and involves the trespasser exercising a certain degree of control over the land which would be apparent to a third party and would usually demonstrate ownership. This could include fencing off the land, barring access to the land or living on it.

The possession of the land must be without the owner's consent, or it would not be adverse. If a land owner has given permission to another party to occupy land then a claim would likely fail, as there would likely be a licence or some other arrangement in place.

Provided that the abovementioned elements have been met, then the consequences of the adverse possession depend upon:

• whether the relevant land is registered with HM Land Registry and;
• when the squatting began.

This is because the Land Registration Act 2002 came into force on 13 October 2003 and created a new system of adverse possession law. This situation pre-October 2003 is often referred to as the old rules and post October 2003 as the new rules.

Under the old rules, if a trespasser has been in continuous possession of the land for at least 12 years (with some exceptions) prior to 13 October 2003 they can automatically claim the squatted land. This is on the basis that the original owner of the land has effectively lost the paper title to the land and holds it on trust for the trespasser.

Under the new rules, if the trespasser has been in adverse possession for at least ten years ending after 13 October 2003 then they can apply to be the registered proprietor of the land. The registered proprietor then has an opportunity to object (again with certain exceptions), giving land owners greater protection against losing their land to a trespasser.

It is important to note that the old rules apply to unregistered land, regardless of when the squatting began.

The lesson is for landowners to understand (perhaps based upon legal advice) exactly what land is owned by them, and if there is any uncertainty to take action at the earliest opportunity. By the same token, if someone has occupied land for an extended period of time on an uncertain basis they may wish to seek legal advice as to any rights they may have acquired.