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How Do I Make A Claim For Adverse Possession

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  • 25-04-2022
How Do I Make A Claim For Adverse Possession

Making an adverse possession claim can bring many complications. See below for what adverse possession is, what the necessary intentions to possess land are, eligibility for claiming, the evidence needed for a successful application, and the rules for claims for registered and unregistered land.

What is Adverse Possession?

Adverse Possession is a legal term for the procedure in which a person who is not the legal owner of land has it transferred to them after inhabiting and occupying it for a lengthy period. This displaces the title of the original owner of the land. The process is dependent on a few factors, including the period in which the person has occupied the land, whether it's registered at the Land Registry, if the land is unregistered, the date when the land was previously registered, whether the land is held within a Trust, and if the land has been previously owned by a limited company.

What is an Intention to Possess?

The intention to possess land must be proven by an individual that they have had an adequate amount of custody and control over said land. It must be proven by evidence that supports the intention of the individual's desire to possess the land.

It is not enough to care for the land through mowing, de-weeding, or tidying up the area. It is also not enough to find unregistered land, have animals graze on it, or simply use the land for the required period.

It is enough when you have had exclusive occupation with the intent of excluding those from the land other than your own visitors. Providing evidence that the occupier has treated the land as if it was their own is the path to success with your application. Depending on the nature of the land and how it is typically used, the occupier must show a large amount of physical control over it.

Can I Claim Adverse Possession?

You can claim adverse possession if you show evidence that proves you comply with the requirements of the Land Registry and the Courts. To reiterate earlier points, you can prove you deserve it by showing you have used, treated, and dealt with the land the same way in which an owner would be expected to.

You might be able to claim ownership of the land if you have occupied it for several years. Usually, this period is between 10 and 12 years. Ownership refers to the Possessory Title and not the Title Absolute, proving the purchase of land.

You may not be able to claim adverse possession if the following circumstances prevent an application: the registered proprietor is deemed to be an enemy or the land in enemy territory, the registered proprietor is unable to make decisions about adverse possession due to a mental disability or physical impairment, the land and its estate have been held by a Trust at any time between the time of application and 10 years prior, or if the registered proprietor was dead or bankrupt between the time of application and 10 years prior.

Proving Adverse Possession

Proving that you deserve a successful adverse possession application requires much proof. Proof of possession and use of the land may take the form of documents or photographs. 

Documentation is not necessary but will certainly aid your application by proving that you have official evidence. 

Any invoices of any money that you have spent maintaining the land, such as fencing, may prove useful when proving intent that you are looking to spend money improving the land as an owner usually would. Any letters sent or received additionally support this point.

Ensure that all evidence is given correctly, otherwise, you risk the application being rejected or returned. Avoid spending more time applying by proceeding correctly.

If others have had access to the land you are trying to get adverse possession of, your application may not meet the requirements to successfully claim the land. 

However, an exception to this is many cases where others accessing the land was not as fatal to an adverse possession application. 

For example, an individual had placed paving slabs to create an area where they could park their car. No one else used it but that individual. The individual treated the land as an owner would be expected to, which is why it was not an issue to determine adverse possession. 

By doing anything to the land, you must have an intention to possess said land if you are trying to apply for adverse possession. 

For example, if you were to place borders or fences around an abandoned mine shaft, then the intention is to provide safety, not possession. If the fence was to keep people out instead, it would be useful to use the fact that you have placed fencing as evidence of your intent to possess the land you have fenced off from others.

Registered and Unregistered Land

You can be entitled to claiming adverse possession of unregistered land if you have had possession of it for 12 years. 

To be successful in your application, ensure that you have proved possession of the land using the previously described evidence.

It takes 10 years of possessing registered land before you are entitled to apply for the Possessory Title at the Land Registry. 

Apart from possessing the land during that period, you will still need proof of correctly using the land. However, seeking to claim registered land can come with counter-notices and objections.

Since 2003, there has been an established set of new rules that happens once you apply. Once submitted, the Land Registry will send notice to who is classed as the true owner of the land. 

After that, they may object to your application of adverse possession if they believe you do not meet the criteria. They may also send a counter-notice in which they state their objection to avoid any further applications of similar concern.

The application can fail after a counter-notice has been stated unless it can be argued that it was an unfair notice, you are entitled to be the registered owner, or the land you want to possess is adjacent to yours, and you mistakenly believed it to be yours. 

It might be that you had been the one to pay for the land, but due to issues in the contract, it was not correctly transferred to you.

There will rarely be an easy approach to applying for adverse possession of registered or unregistered land, as many rules and criteria must be met with many complications and exceptions. 

It is the case that these exceptions are evident in many applications, so be sure to remain true and honest in the possession procedure to ensure you rightly get what you are owed. 

If the application is not opposed, then the squatter will be registered as proprietor in place of the registered proprietor of the land. If the application is indeed rejected, but the person remains for a further 2 years, they can reapply to be registered as proprietor. Subject to the exceptions, this can happen whether or not anyone opposes their application.

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