Squatters and adverse possession?
Adverse possession is based on the concept that if a legal owner of land fails to evict a squatter from his land within a certain period his rights over that land will be lost.
Establishing Adverse Possession
The Paper owner (legal owner of the land) must have either: given up the rights of the land, and thus the squatter then takes control after his departure or the legal owner is dispossessed, as the squatter takes possession of the land.
In addition to either of the above requirements being satisfied, the person intending to adversely possess the land must show that each of the following requirements was satisfied:
- Factual possession of the land
- An intention to possess
- The possession of the land has been ‘adverse’
Factual possession of the land
In order to establish factual possession over the land, the squatter must show an appropriate degree of physical control over the land. Examples of what constitutes ‘physical control’ are as follows; The erection of fencing ( enclosure usually being the strongest possible evidence of factual possession), Building a property on the land ,Maintaining the boundaries between neighbouring properties/ land (e.g. walls, fencing) this would include any repairs or applications for planning permission to heighten the boundaries for further exclusion to outsiders. ,Shooting wildfowl, Leasing the land to a third party
The intention to possess ( Animus Possidendi)
To satisfy the intention to possess the squatter must show that they have tried ‘to exclude the world at large’ including the paper owner of the land itself. The squatter will even be entitled to the land if he took possession of the land solely believing he was entitled to the, possibly as a tenant or freehold owner.
The possession must be ’Adverse’
For possession of the land to be considered as ‘adverse’ the squatter must have acquired the land in a manner inconsistent with the wishes of the paper owner. If the squatter has had the permission of the legal owner to use his land or if the legal owner of the estate knows of the squatters habitation on his land then the possession is not adverse and then the rules governing adverse possession will not apply.
Adverse Possession and Unregistered Land
The rules governing adverse possession in relation to land that has not been registered with HM Registry are covered by S15 (1) Limitation Act 1980, which states;
- ‘No action shall be brought by any person to recover any land after the expiration of 12 years from that dates on which the rights of action accrued to him’
As soon as a squatter goes into adverse possession over unregistered land, he acquires a fee simple absolute in possession . This being a form of ownership over the land that will not be extinguished upon the squatters death. The ‘absolute’ part of the fee simple means that there are no restrictions on the squatters ownership and the only person with a stronger link to the land would be the true owner as long as it is within the limitation period.
If the squatter(S) dispossesses the true owner (T) and the limitation period has passed the squatter will have the strongest title over that land. If the squatter is then dispossessed by another (A) the S can recover the land from A by taking legal proceedings.
Adverse possession for the limitation period of 12years need not be one sole adverse possessor. Successive periods of adverse possession can be added together to total the 12year limitation period. This can occur providing there is no substantial interval of time between each successive squatter for which the land has been vacant.
The legal owner of the estate can stop the time running between successive adverse possessors by. Starting proceedings to recover the land within the time outlined by the Limitation Act 1980. These proceedings must be followed through until the judgement of the case. Merely starting proceedings will not stop the time if this is the only intention by the paper owner, and following proceedings until the end was never the intention of the legal owner. By requiring that the occupier (squatter) of the land write a letter of acknowledgment of the paper owners title Or by the paper owner giving the squatter permission to remain on his land.
Adverse Possession and Registered Land
Registered Land was originally governed by the Land Registration Act 1925. The Law Commission and HM Registry compiled a report in 2001 titled, ‘Land Registration for the Twenty-First Century: A consultative document’ which made recommendation that where introduced by the relevant law of today, The Land Registration Act 2002. Unregistered land was not affected by the introduction of this new legislation and thus the above rules still apply however registered land was completely altered, arguable for the better.
The Land Registration Act 2002
Under this law adverse possession will not extinguish the title of the paper owner. However, a squatter can apply to become a registered proprietor after 10 years of adverse possession.
During the application process the registrar must give notice of the application to the paper owner and anyone with interest in the property.
If none of these people object to the application then the squatter will immediately become the registered proprietor of the land.
If any one contacted rejects the application then the squatter will usually be rejected as proprietor unless. There is a reasonable mistake over the boundaries of the land. There are some other rights in the land or it is unconscionable because of equity by estoppel
If the application is refused but the squatter remains on the land, he may then make an application for registration once again in another 2 years time. This application cannot be rejected and under Para 6 Land Registration Act 2002 he is entitled to be registered as proprietor of the property.