What is adverse possession of land and how can I obtain it?
The majority of land in the UK is registered at the Land Registry and property owners should be familiar with the boundaries of their land.
However, there are some instances where land remains unregistered (i.e. as it has never been sold which is one of the main triggers for compulsory registration).
In many cases, the owner of a neighbouring property may be using or occupying land or part of it and may even be unaware that this land does not actually form part of their own registered title.
What can you do if you find yourself in this situation?
Let’s look at a case where part of the boundaries at your own home extend into adjoining land which you do not own and which is unregistered.
For your own home, your registered title will suffice as proof of ownership. This is referred to between lawyers as “title absolute”.
If the boundaries to your property are unclear and you believe you may be occupying additional land which is not included in the title plan to your property, you may be able to claim adverse possession over that additional land.
What is adverse possession?
If you are not the legal owner of the additional land then you may become the legal owner by possessing the land for a specified period of time:
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- Unregistered land – a minimum period of 12 years;
- Registered land – a minimum period of 10 years,
And you must prove that you have, for the relevant specified period of time:
- enjoyed uninterrupted factual possession of the land – i.e. continued to physically use the land exclusively without consent and nobody has complained that you have been trespassing or encroaching.;
- the intention to possess the land; this means you have more than just used the land occasionally but you have maintained the land as your own inconsistent with the rights of the owner.
Evidence of maintenance, cultivation, building works and fencing around the land will support your application for possessory title.
Heaney v Kirkby
Recently, the case of Heaney v Kirkby concluded in the Court of Appeal where an elderly couple (Kirkby) who maintained a verge opposite their neighbour’s home (Heaney) for 12 years (unregistered land), won their claim for adverse possession.
In brief:
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- The Kirkby’s bought their property in 1999;
- They did not own the verge outside their property but they installed two parking spaces, renovated and maintained it for over 12 years;
- February 2012 – The opposing neighbour – Mr. Heaney – acquired paper title to the verge;
- Heaney then ordered the Kirkby’s to cease using this acquired land;
- April 2012 – Mrs Kirkby made an application to the Land Registry to register title by adverse possession to the verge.
In 2014 the First Tier Tribunal Judge concluded that Mrs Kirkby had been in factual possession of the verge since July 1999.
In 2015 the Upper Tribunal Judge concurred. In 2016 the Court of Appeal concurred.
What does an application for adverse possession involve?
Once you have submitted your application, the Land Registry will assess the evidence.
They may require a surveyor to inspect the land and it is likely that they will serve notice on neighbouring property owners to see if they object to the application.
If the Land Registry are satisfied that:
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- 12 years of adverse possession has been established in the case of unregistered land; or
- 10 years of adverse possession has been established in the case of registered land; and
- there are no valid grounds for a third party to object,
the Land Registry may award possessory title to you.
What are the next steps?
In light of Heaney v Kirkby, if you use land for the specified period of time with an intention to possess that area of land then you could obtain a right to acquire the land by adverse possession.
This is clearly useful for those seeking adverse possession and poses a risk for those who have acquired paper title to land if the adverse possessor has already accrued a right to adverse possession.
If you are concerned about the boundaries to your property and believe you may be occupying additional land or you have discovered during the sale or purchase of your property that there is a potential case for adverse possession, please get in contact and our property solicitors on 0800 988 7756.
