Adverse possession of registered land

Described in the Law Commission’s Report 271 (Law Com 271), the “doctrine of adverse possession” allows the acquisition of a title to land that is owned by somebody else. This is subject to certain conditions, which include continual possession of the land or using it for a certain period of time in absence of the owner’s permission.

Acknowledging that “land is a precious resource and should be kept in use”, the Law Com 271 sets this point out as one of grounds for the doctrine.  It also however, recognises that where the doctrine of adverse possession is concerned, “the balance between landowner and squatter needs to be adjusted to overcome some of the deficiencies…while maintaining the advantages”.

The terms and commentary on a Land Registration Bill, which were set out by the Law Com 271, went on to become the Land Registration Act 2002 (LRA 2002).

Adverse possession claims were previously subject to the Limitation Act 1980 (LA 1980), in relation to both registered and unregistered land. In order to evidence the adverse possession, certain acts were required to support a claim based on various case law. For a claim to be established, and a title to be acquired through adverse possession, the claimant must have demonstrated:

1. Factual possession of the land without the owner’s consent,
2. Sufficient intention to possess the land such as by acts of use/maintenance, and
3. All of the above for a continuous 12-year period
   – This may have been longer in certain circumstances

Under the LRA 2002 however, adverse possession is dealt with in a new way for registered land. In removing sections 15, 16 and 17 of the 1980 Act, a new system was been introduced which requires the acts of adverse possession to be undertaken for at least a ten-year period. Factual possession and intention to possess are therefore necessary for a much longer duration, in order for an applicant to apply to be registered as proprietor of the registered estate, instead of the current title holder.

An ADV1 form is required, along with other relevant documents. These include a statutory declaration, or statement of truth the applicant has made no more than a month prior to the application being put forward. Also, any other evidence which may be deemed relevant to support the claim should also be provided. For the statement of truth, an ST1 form may also be completed and can provide a guide as to what information is relevant to the application.

If an application is the first one lodged, the individual must demonstrate that they and other predecessors relevant to the claim, have been in adverse possession for a period of at least ten years.

The applicant is not required to have personally been in adverse possession for the entire duration if they are the successor in title. If an interest is transferred from A to B after a five-year period, and B continues the adverse possession for a further five years, the length of time has been continuous. B is therefore able to apply using a statement of truth from A, as well as B for the entire period. If an application is made in this way, it should detail the way in which title has passed between the parties as well as ideally containing any other relevant documents which support that the interest has been transferred.

If an applicant is evicted having been in possession for ten years, it may still be possible for them to make an application, provided the eviction was not pursuant to a court order for possession. In order to apply in these circumstances, an application must be made within six months after the eviction. Up until the point of eviction, the applicant must also have been eligible to be registered.

For applicants who do fulfil the relevant criteria and have been in adverse possession for ten years or over, the LRA 2002 sets out specific circumstances where an application cannot be made:

• Where an applicant is a defendant in proceedings which involve possession of the land (an application for adverse possession cannot be made where the individual is defending eviction proceedings).
• Within the last two years, a judgement for possession has already been given against the applicant.
• During a time where a registered proprietor is an enemy under the Limitation (Enemies and War Prisoners) Act 1945 or is detained within enemy territory (or a year following the end of the period).
• Where the decision-making or communication ability of a registered proprietor is affected due to a mental or physical impairment.

When completing an application, it is important the individual acknowledges their position should the registered proprietor serve a counter notice to the application. This will require the Land Registrar to address the application under the LRA 2002 – paragraph 5 of Schedule 6. If a counter notice is lodged, the applicant is only eligible to be registered if any of paragraph 5’s three conditions are met. The applicant must identify and set out in their ADV1 form whether they wish to rely on one or more of these conditions, and ensure the ST1 or statutory declaration sets out the applicable facts in support of this.

Following the receipt of a valid application, a notice will be served if the registrar concludes from the supplied evidence that it is more likely than not that the individual will be eligible to apply for title. The registrar may commission an Ordnance Survey surveyor to conduct an inspection report in order to provide more information.

Within the LRA 2002, paragraph 2 of Schedule 6 outlines certain parties that notice of an ADV1 application must be served upon. The opportunity to object is available to these parties, as well as the option to serve counter-notice within a notice period of 65 business days. If a counter notice is served and no objection received, the individual will be registered in the registered proprietor’s place.

Notice of an ADV1 application on parties not specified in paragraph 2, may also be served by Land Registry at its discretion. These parties will however, only receive the opportunity to object an application, which must be done within a notice period of 15 business days.

Should the registrar be required to address an application pursuant to paragraph 5 provisions, the applicant must be able to put forward an arguable case that at least one of paragraph 5’s conditions have been met in order for the application to proceed.

The first condition – proprietary estoppel

The first condition is based upon proprietary estoppel. It must be shown by the applicant that it would be unconscionable, because of an equity by estoppel, for the registered proprietor to attempt to dispossess the individual and the individual ought to instead be registered.

The applicant will need to provide evidence to support the claim that the actions of the proprietor encouraged or incited the applicant to believe they owned the land. This must be to the extent that the individual acts to their detriment to the knowledge of the proprietor and as a result, it would be unconscionable for the proprietor to deny the individual of their rights. Two examples are set out in the Law Com 271 which explain where this condition may be applicable:

• The registered proprietor has knowingly acquiesced when the applicant has built on their land with the mistaken belief that they were the owner. After ten years, the applicant applied to be registered, having discovered the true facts.
• Where an informal sale agreement for valuable consideration has been entered into by neighbours, where one agrees to sell the land to the other. The price is paid by the ‘buyer’ who takes possession of the land and treats it as their own. In regards to title, no steps are taken to perfect it and there was no contract. If the individual has been in continuous possession for ten years, they may apply to be registered as the proprietor.

The second condition – squatter has some other right to the land

Within the Law Com 271, various examples are provided in relation to this condition. These include where the individual is entitled under a will or intestacy of the deceased proprietor, or that the applicant contracted to purchase the land and paid the purchase price, but the estate was never transferred to him. Under a bare trust, the individual is a beneficiary and can therefore still be in adverse possession.

The third condition – mistaken belief as to boundary

This applies where the land concerned in the application is adjacent to that of the applicant, which they reasonably also believed belonged to them. No determination must have been present of the relevant boundary pursuant to section 60 of the LRA. The land within the application must have been registered for at least 12 months prior to the date of the application.

Response to notice

Land Registry will include a form NAP (respond to an adverse possession) for recipients to fill out when responding to them, where they are serving notice of an ADV1 application on any of the parties specified in paragraph 2. Certain options are available to the recipient of such a notice:

• Consent to the application
• Not respond to the notice
• Object to the application
• Serve counter-notice

If a notice is not responded to, the situation will be treated the same as if the recipient had consented to the application. The recipient is able to both object and serve counter-notice if they desire.

Where no response or consent is given

In these cases, Land Registry will proceed with the application and register the individual as the registered proprietor in place of the current one.

Where an objection is made

The right to object to an application – provided by s.73 of the LRA 2002 – is available to anybody, whether they are the recipient of notice or not. Counter-notice however, can only be served by the parties specified in paragraph 2. Any objections made must be done so in accordance with the requirements of rules 19 and 198 of the Land Registration Rules 2003, prior to it being considered.

Any objections made will typically challenge the alleged acts of adverse possession in relation to the land, or query the duration of time which they were carried out. On an individual level, objections to applications are considered on their own merits when received. Where an objection is considered ‘groundless’, this will not affect that application. Whereas, if the objection is considered ‘non-groundless’, then notice of it will be served on the applicant and the dispute process with Land Registry will begin. If the objector and the applicant cannot reach an agreement, the applications will be referred to the Land Registration division of the Property Chamber, First-tier Tribunal for judicial resolution.

Where counter-notice is served

When this occurs, it will be considered whether the applicant is relying upon any of paragraph 5’s conditions, by the registrar.

It may be the case that, where none of these conditions are being relied upon by the applicant, their application may be rejected. If the applicant is relying upon one of the conditions, the registrar will decide whether the supporting evidence indicates an arguable case for the claimed conditions being met.

If the registrar is satisfied that an arguable case has been presented, Land Registry will get in touch with the party who served the counter notice. The opportunity to object to the application will be given to them upon this ground. Where no agreement is reached between the parties for a ‘non-groundless’ application, the issue will be referred to the tribunal.

When considering whether an applicant is in adverse possession of the land, where there is no counter-notice served, the paragraph 5 conditions would not make up part of Land Registry’s reasoning.

If an application is rejected, the applicant can reapply again two years after the rejection date, provided they have continued to be in adverse possession of the land. This is under paragraph 6 of Schedule 6 LRA 2002.

Where a counter-notice is received along with an objection in response to the registrar’s initial notice, the objection will be addressed first. This is unless it is withdrawn.

Unusual applications

Issues with trust

Where an estate is subject to a trust, an individual is not be regarded as being in adverse possession of it, except where the interest of each beneficiary in the estate is an interest in possession. Where land is held by the registered proprietor and held on trust for life, the adverse possession is unable to commence until the beneficiary becomes entitled in possession. The aim of this provision is to safeguard the interests of any beneficiaries who are not in possession.

Adverse possession applications for registered leasehold land

When possession of land subject to a lease is taken by an individual, the required time period is deemed to run against the tenant but not the landlord. For the landlord, the time does not begin running against them until the lease expires, except in cases where the individual entered possession prior to the creation of the lease.

The potential for the tenant to apply to surrender their lease at any point means the applicant’s position can be further confused. Where leasehold title is given up, any time which has been built up in adverse possession by the applicant is similarly extinguished. By reopening the closed leasehold title and making an ADV1 application against it, it has been suggested that the judgement in Central London Commercial Estates Ltd v Kato Kaguku allows an applicant to apply to change the register.

The right of the individual to make an application under paragraph 1 of Schedule 6 LRA 2002 would need to have arisen prior to the leasehold title being surrendered.

Intrusion from leasehold land onto registered land

Particular issues may occur where a property’s tenant or landlord makes an application to be registered as proprietor of adjoining freehold registered land by way of adverse possession. The case of Smirk v Lyndale Development Ltd [1975] explains the issue of a presumption that a tenant who encroaches onto land does so for the landlord’s benefit as a lease accreditation. If a landlord makes an application in relation to such encroachment, this falls within the presumption and the application is able to proceed.

Where an application is being put forward by a tenant, there is some debate – which is arguably academic – as to whether the presumption applies. One stance is that it would be necessary for the tenant to rebut the presumption. There is however, an alternative view that the presumption should only be concerned with those who have, at common law, acquired title to the estate. It would therefore not change that the tenant is in adverse possession meaning it would be irrelevant, when under Schedule 6 or the LRA 2002, an application is made. A sufficient amount of supporting evidence may be provided by the act of submitting the application in their own name. This is required to illustrate that the tenant intended their encroachment to be for their benefit.

As it is likely that both the landlord and the tenant will have an arguable claim to the adversely possessed land, notice of an application will be served on both. As well as this, notice will be served upon the registered proprietor – who may also be the landlord.

Points to remember

• It is important to pay close attention when deciding which paragraph 5 condition is to be relied upon when an application is being made. Information should be included regarding the individual’s reliance upon the relevant paragraph, within the statement of truth or statutory declaration. Multiple paragraph 5 conditions can be relied upon within an application.
• If none of the paragraph 5 conditions are relied upon by the applicant or they fail to satisfy them, if counter-notice is served, the application will fail. If counter-notice is not served, the reliance upon paragraph 5 conditions is no longer needed.
• For adverse possession, the applicant must show their factual possession as well as an intention to possess the land for a certain period of time, in absence of the owner’s consent. These are the basic principles of the doctrine and remain unaffected by the LRA 2002.
• It is important that registered proprietors update their address with Land Registry. This would negate the possibility of any problems resulting from notice not being received and the proprietor then being unable to serve a counter-notice or lodge an objection.