ADVERSE POSSESSION – WHERE ARE WE NOW?
Introduction
As a land litigation lawyer, historically your diet of work often included an adverse possession claim either seeking to rebuff such a claim or seeking to maintain one for some tactical advantage such as preventing an element of a development scheme. However, over the last few years those types of claim are not so prevalent. Why is this?
Pye v Graham
Arguably the modern high watermark, highlighting the potential significance of an adverse possession claim, was in the case (which my colleague, Peter Williams, advised and acted on behalf of the successful Graham farming family) of JA Pye (Oxford) Limited v Graham in 2002 which went all the way to the House of Lords. That claim related to 4 fields (totalling some 23 hectares) where the Grahams had remained in occupation after the expiry of a grazing and mowing agreement. Mr Pye subsequently took the case, against the UK Government, to the European Court of Justice alleging that the UK rules on adverse possession were a violation of human rights and maintaining a claim for £10million for the alleged financial consequence of losing valuable development land. That case, which received national press coverage at the time, had the effect of raising the profile of adverse possession.
Land Registration Act 2002
At the same time though the rules for adverse possession were being rewritten as part of the Law Commission/HMLR Report on ‘Land Registration for the Twenty First Century’ which was the background to the Land Registration Act 2002 and which included a fundamental rewrite of the rules for adverse possession.
Now, for a claim against registered land (which crystallises after 1 October 2003) a claimant needs to show adverse possession for a period of ten years prior to making an application to be registered as relevant owner. However, following notification of such an application from the Land Registry, the registered proprietor (current landowner) has sixty five days to object and then a further two year period to seek to evict the adverse possessor/squatter (for trespass).
There are now only very limited situations where despite a registered proprietor’s objection an adverse possessor/squatter can successfully achieve registration. They are… –
- That it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter
- The squatter is for some other reason entitled to be registered as proprietor
- The squatter has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it
Accordingly, maintaining a claim for adverse possession is now extremely difficult.
Where claims arise
However, there are still claims out there which can rely on the old regime – either because the claim relates to unregistered land (although inevitably they are becoming rare – the HMLR published data states that as at September 2019 87% of land in England and Wales is now registered – and HMLR maintain a target date of 2030 for full comprehensive registration) or a claim of twelve years of adverse possession can be established before 1 October 2003.
An example
A matter came across my desk recently where land was first registered in 2008 but a part was being adversely possessed. However, that party was unaware of the first registration at the time and indeed only became aware of the position a few months ago. Section 29 of the Land Registration Act 2002/Schedule 3 paragraph 2 addresses such a situation and the potential of the adverse occupying party, provided that they were in actual occupation at the date of transfer and registration, having an overriding interest which could still bind the registered title (and indeed any chargee) and allow for an application to alter the register.
While the ‘good old days’ for the adverse possessor of land are (other than for boundary alterations) moving into their twilight there remains some situations that still pose a real problem for a developer/landowner or give rise to potential opportunities for an adverse occupier.
© Richard Bedford
June 2020
Contact: Richard Bedford, Ebery Williams, richard.bedford@eberywilliams.com