One of our most common queries relates to garden land and how it should be treated in the event of a purchase/sale of a property, particularly when some of the land extends beyond official boundaries as shown on the Land Register. Developers when building new houses have a plan setting out the layout of a development however, when they build the houses (and in particular enclose the gardens) they sometimes stray from the plans. This results in the layout of gardens, or more particularly their boundaries, differing the from the official HM Land Registry plans.
The Land Registry will use the plans attached to the deeds submitted to them to create the “title plan” and, if different to the physical boundaries, it can create a situation where homeowners occupy land they legally do not own. This may not be an issue during occupation of the property however, this often first comes to light on subsequent sales years down the line.
Claiming possession of the type of land in question (that is not legally yours) is through a process called ‘adverse possession’. Not every law firm has the experience or the capability to handle adverse possession applications. These types of cases can be complex, often requiring detailed statements that include the correct evidence to support the application.
At AFG Law, our solicitors are highly experienced in this area, ready to support you with your application and have a high success rate with such Land Registry applications
For more information on our services and how we can assist you with your case, please do not hesitate to get in touch with our commercial property team today.
What Is Adverse Possession?
Adverse possession is a legal term for a process that allows a party to claim ownership of land or property that they occupy and have maintained for a significant period, but which they do not formally own. It is not simply a case though, of occupying land for a few weeks or months. There are strict conditions to meet to be before you can obtain adverse possession or “possessory title” to land.
If you are successful in your claim for adverse possession, you will be registered as proprietor of the land at the Land registry which means you have legal ownership and the legal right to sell it if you wish.
Requirements for Adverse Possession
If you have been using or maintaining a piece of land under the belief that it was yours, when in fact it wasn’t, for example, you may be able to claim ownership through adverse possession.
This legal process allows an adverse possessor to apply for ownership of land they have occupied without permission, provided certain strict conditions are met.
The Land Registration Act 2002 came into force on 13 October 2003 and introduced a new system for claiming adverse possession.
To make a successful claim for adverse possession of land or property, the following criteria must be satisfied:
Exclusive Possession
You must have exercised factual possession and control over the land as though you were the true owner. This might include actions like fencing off the land, installing gates, or preventing others from entering or using it. The key is to demonstrate that you treated the land as your own, to the exclusion of everyone else.
Intention to Possess
There must be clear evidence that you intended to possess the land, not merely use it temporarily or casually (for example, as a shortcut or storage area). Improvements made to the land, regular maintenance, or personal use all support an intention to possess.
Continuous Possession for the Required Time Period
- For unregistered land, you must have occupied the land without interruption for 12 years.
- If the land is registered, you must have occupied the land for 10 years without interruption, and then apply to be registered as the new owner.
Where the land is registered, he registered owner will be notified and has the opportunity to object to the application but the land registry generally do not accept objections unless is because the occupier does not meet the conditions fo for adverse possession. They simply cannot object because they wish to retain the land. . .
Without the Legal Owner’s Consent
Your occupation must have occurred without permission from the legal owner. If you were given access via an agreement, licence, or lease—even informally—you generally cannot claim adverse possession.
How to Apply for Adverse Possession
The process of claiming for land or property through adverse possession would typically begin with gathering the evidence to establish you have met the conditions set out above. It is generally advisable that you use a solicitor for this process.
You must complete the appropriate forms for the Land Registry, which include the preparation of a detailed statement explaining how and why you satisfy the criteria for adverse possession. Providing a detailed and carefully prepared statement is essential to the success of an adverse possession application. Without sufficient evidence, the Land Registry is likely to refuse the application.
At AFG Law, our solicitors have extensive experience in drafting thorough statements that meet the necessary standards and have helped clients achieve successful outcomes.
The Land Registry will notify the current registered owner, who will be given a chance to object. If there is no objection, or if your claim is upheld after an objection, the land will generally complete the application which means the Land Registry will issue a new title registered in your name with a new title plan.
Given the complexity of adverse possession claims, it is highly advisable to instruct a specialist who can guide you through the process, to ensure the application is prepared correctly, and maximise your chances of success.
At AFG Law, our team of commercial property solicitors have many years of experience in assisting clients with adverse possession claims. If you are searching for expert legal advice, please do not hesitate to get in touch with us today.
Responding to a Claim for Adverse Possession
Under Schedule 6 of the Land Registration Act 2002, the legal owner has 65 business days to respond to a claim for adverse possession. They can do one of three things:
- Object to the application (for example, by saying the squatter hasn’t been there for 10 years),
- Serve a counter-notice, or
- Do both.
If a counter-notice is served, the squatter’s application will usually fail unless one of the following exceptions applies:
Equity by estoppel:
This means it would be unconscionable because of an equity by estoppel to remove the “squatter”/occupier of the land, because the owner led them to believe they could stay, and the occupier relied on that belief.
Other entitlement:
The occupier has some other legal reason to be registered as owner.
Boundary mistake:
The occupier/squatter has been in adverse possession because they reasonably believed they owned the land due to a boundary mistake (like a fence in the wrong place), the land touches their own property, and the boundary hasn’t been officially set.
If none of those exceptions apply, the squatter will likely lose the first application.
However, if the legal owner doesn’t evict the squatter within two years after the first failed application, the squatter can apply again. This time, the application will usually succeed, even if the owner objects.
Speak to a solicitor at AFG Law today
Our specialists regularly assist clients with adverse possession claims. We can assess whether you have a realistic claim based on the evidence available and gather and present the necessary documentation to support your application. Our team will ensure that your Land Registry application is completed and submitted correctly.
Please do not hesitate to get in touch with our commercial property specialists today to discuss your case. Our solicitors offer clear legal advice backed by a deep understanding of land law and property rights. With offices in Bolton, Bury, and Stockport, and the option for remote consultations, we offer our assistance to clients across the country, making quality support easily accessible no matter where you are.
For more information, please contact commercialpropertyenquiries@afglaw.co.uk or call us on 0161 5152577.