Property: Adverse possession

Adverse possession is the process by which a squatter who resides on a piece of land for the requisite period, as required by law, may become the owner of that land. As will be discussed below, this makes the process a rather controversial one, which has been said to conflict with the Human Rights Act 1998.

The requirements that must be satisfied for adverse possession to take place are three fold: Firstly, there must be factual possession. This is further subcategorised into 1) real possession (Powell v McFarlane said sporadic use didn’t suffice); 2) exclusive possession (Bucks CC v Moran said that using land as a garden undisturbed for 40 years was adverse possession); and 3) continuous possession for the full 12 years for unregistered or 10 years for registered. The next requirement is that there must be an evident intention to possess, also known as animus possidendi. Finally, the possession must be 'adverse', or in other words, inconsistent with the paper owner's title.

The rules for adverse possession differ depending on whether the land in question is registered or unregistered. These will be dealt with individually.

Unregistered land is governed by the Limitation Act 1980. The squatter must have 12 years continuous occupation as per s.15(1); once this time has passed, the paper owner’s title will be extinguished automatically, as per s.17. The occupation may be consecutive with multiple owners as per MCI v Thurlow, provided that there has been no gap in the occupation. Prior to the completion of the 12 year period, the squatter will have all the rights and powers of an owner enforceable against everyone except the paper owner (can sue for torts or against a third party trying to take possession). The squatter will take subject to any third party rights but will always gain a fee simple, irrespective of what the paper owner had, as per Leach v Jay.

Registered land is governed by s.96-98 Land Registration Act 2002. The squatter must have 10 years continuous occupation and may then apply to the Land Registry to take title of the estate. The Land Registry will contact the paper owner and inform them of the squatter’s application, to which the paper owner may accept, reject or ignore. Accepting or ignoring the request will make squatter the owner, extinguishing the previous owner’s title. Rejecting will ensure the squatter does not take title but the paper owner must reclaim the property within 2 years or else the squatter may reapply. There are 3 circumstances in which the squatter will take possession even where the paper owner rejects: firstly, estoppel; secondly, some other right to land; thirdly, reasonable mistake as to boundaries.

There may be difficulty justifying adverse possession of registered land because there is no need for investigation of title, however one may rely on the argument that it’s in the public interest that properties should not be left derelict. It also encourages individuals to take responsibility for their own land.

As mentioned above, the human rights issues with adverse possession have caused ongoing debate. Pye v Graham (2003) concerned a plot of land that was bought for the purposes of development but which was let to the squatter for an agreed period, so that he could use the land for grazing while the owner had no use for it. At the end of the agreed period, the squatter reapplied for permission to use the land but received no response and thus continued to use the land without the owner’s consent. When the owner eventually decided to use the plot and claimed it back from the squatter, the courts said that it had been ‘adversely possessed’. The House of Lords inferred an intention to possess from the squatter’s enjoyment of the land. The owner could not rely on the Human Rights Act because the legislation had not been enacted at the time the land changed hands, and it cannot act retrospectively. Neuberger J said that it’s difficult to justify a loss of a man’s land simply because he failed to remove a squatter within 12 years; however, despite this, Pye still lost his case.

The case then became Pye v UK (2005) in the European Court of Human Rights, where they ruled that it was a violation under the ECHR. One argument is that under Article 6 – the right to a fair trial, the fact that for unregistered land a man is not even told that his title is extinguished on completion of the 12 years, gives him no chance to object. This could however be deemed in the public interest as it saves time and money searching for property owners. The UK then appealed against the decision, arguing that there was a long limitation period, the law is well established and the owner could easily have avoided the issue by taking back the land. The Grand Chamber took the UK’s side and reversed the decision. They held that the law on adverse possession was better dealt with in a national court than an EU court. The law was long-standing and had not been eradicated by the LRA 2002; therefore the court was satisfied that the law did not need changing.

The case of Ofulue v Bossert confirmed Pye v UK. The applicants argued that the court should assess the effectiveness of adverse possession with every new case but the court disagreed and said it would need a very good reason to consider changing the law.

Ways in which adverse possession is beneficial: 1) Mistake – helps innocent parties who invest time and money in a piece of land which they believe is theirs. 2) Keeping land in use – ensures that land which is left by the owner does not become derelict. 3) Facilitating investigation of title.