The elements to be proven

Before an occupier can bring a claim for adverse possession of registered land, it should be established that the necessary requirements can be made out. These are as follows:

1. Factual possession The applicant must have been in factual possession of the whole land continuously for the required period of time (10 years). Factual possession is usually exclusive physical control. Some examples would be when a fence has been erected around the land or when the applicant has installed a gate with a lock and is the only person to hold a key. Both scenarios enable the applicant to use and possess the land as his own. Possession of part of the land in question is not sufficient. For example, if adverse possession of a field is being sought, the whole field must be factually possessed by the applicant; to possess one corner as a vegetable patch for example would be insufficient.

2. An intention to possess The applicant must be able to show that he had the intention to possess the land as his own and to the exclusion of all other people during his period of occupation. Again, a strong indicator of this would be the land in question having been secured to prevent shared use. In considering whether this requirement is established, HM Land Registry will consider what is reasonable in the circumstances surrounding each particular application.

3. Possession without the owner’s consent Finally, the possession can only be ‘adverse’ if the applicant has been in occupation without the landowner’s consent. Any consent to occupy such as a verbal agreement or the handing out of a key enabling access would prevent this requirement from being established.

The Land Registration Act 2002 (‘LRA’)

Prior to 2002, an occupier of registered land could apply to HM Land Registry for adverse possession if he had been in occupation for a period of 12 years and the above 3 requirements could be established. The real landowner’s title was deemed to be automatically extinguished once the occupier reached this 12 year threshold and it was often relatively easy for a successful adverse possession claim to be made.

However, in 2002, the LRA reformed the process for successfully claiming adverse possession of registered land. The LRA made the following changes in respect of registered land:

• The required period of possession was reduced from 12 years to 10 years, but
• The landowner’s title is no longer automatically extinguished after the required period of possession is reached, and
• The landowner and anyone with a potential interest in the land in question will be notified of the application by HM Land Registry (under Schedule 6, paragraph 2 of the LRA) and have the chance to object to the facts of the application and, rather importantly, serve a counternotice

The Counternotice

Probably the most significant change brought in by the LRA is the ability for the registered landowner to serve a counternotice in response to an application for adverse possession. Once a landowner is given notice of an application by HM Land Registry, he will have 65 business days to file a counternotice if he wishes. A landowner should always consider doing this in order to protect his position if he wants to defend the occupier’s application. It is a small step to take but can result in the occupier’s application being outright rejected.

If a counternotice is served, it will act as notice to HM Land Registry that the landowner requires the adverse possession application to be dealt with under Schedule 6, paragraph 5 of the LRA.

Schedule 6, paragraph 5 of the LRA sets out that an occupier’s adverse possession application will be automatically rejected unless:

a) The applicant has stated in his application that he intends to rely on one of the three conditions in paragraph 5, and b) The applicant can then evidence that one of the 3 exceptions set out within that legislation apply to his circumstances

The 3 exceptions set out within the LRA are as follows:

• Equity by estoppel – This applies when it is unfair and unjust to deny the applicant title to the land. An example would be when the applicant could evidence that he had been promised title to the land in some way and then acted to his detriment in relying on that promise.

• Another good reason – This ground is relatively general and would apply for example if an applicant could show that he had inherited the land via a will or via intestacy.

• Reasonable mistake as to the boundary position – This exception would apply if the applicant could evidence that he has occupied the land as a result of a genuine and reasonable mistake as to the boundary position, for example in the event of an incorrect HM Land Registry title plan or having purchased a property with fences erected in incorrect locations.

If a counternotice is filed and the occupier’s application is rejected by HM Land Registry as a result, the applicant will be prevented from resubmitting their application for adverse possession for a period of 2 years.

During this time, the landowner can and should take action to remove the applicant from the land to prevent any further applications.

Takeaway

Whilst making an application for adverse possession and evidencing the three requirements is not overly difficult, a landowner who is intent on protecting his interest in his land can make the evidential burden much more onerous for the applicant. Filing a counternotice is a small step to take but can result in an application for adverse possession being outright rejected and affords a landowner the chance to bring the unauthorised use and occupation to an end.

A landowner should always ensure that:

1. His address as per the title register for any land or property owned is complete and up to date (as this is the address that HM Land Registry will use to notify the landowner of any adverse possession application) and
2. That a counternotice is filed in response to any application within the required 65 business day period and
3. Finally, that action is taken to remove the occupier from the land within 2 years of an application for adverse possession failing

Key contact: Jessica Dickinson | Tel: 01482 324252