We are covering a topic today that may prove to be of interest to any of our clients with an interest in obtaining title to land which they occupy by adverse possession but which they don’t actually own the legal title to.
Adverse possession is the process by which a person who is not the legal owner of the land can become the legal owner by possessing the land for a specified period of time. Different regimes apply depending upon whether the land in question is registered or unregistered and when the possession took place. However, in all cases to claim title by adverse possession you must prove:
- uninterrupted factual possession of the land for the required period
- intention to possess the land during that period
- possession without the owner’s consent
This essentially means dealing with the land as if you were the occupying owner. You will need to show a sufficient degree of exclusive physical control. What constitutes a sufficient degree will depend upon the nature of the land in question. If the land was previously open ground, fencing off that land is strong evidence of factual possession, although fencing is not essential or conclusive.
Intention to possess
This requires an intention to exclude all others including the owner with the paper title to the land.
Possession without the owner’s consent
You must not use the land under a lease, tenancy or licence or with the consent of the owner.
If the land is registered you must show ten years adverse possession. If the land is registered but the period of possession relied upon ended before 13 October 2003, or the land is unregistered you must show 12 years adverse possession. The requisite period can be shown by successive occupiers of the land.
If you are considering making a claim for adverse possession you will need to gather your evidence together at an early stage to ensure that you have enough evidence to prove your case. Your evidence should include details of the following:
- the circumstances in which the adverse possession started, including dates
- the purpose for which the land has been and is being used and the activities carried out there
- the extent to which the land is enclosed by fences, who erected the fences, who maintains and repairs them, are there gates with locks, who has the keys?
- any rents you receive for allowing another to occupy the land
- any correspondence or communications whereby other people have treated you as the owner of the land, e.g. requesting you to carry out repairs
- confirmation that you do not occupy the land with the consent of the owner
- an explanation of any gaps in possession
Hopefully the above is of interest in filling any gaps in knowledge but if you have any queries about this topic, please do not hesitate to contact any legally qualified member of staff in this office who will be pleased to assist.
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