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Adverse Possession

Adverse possession is a process whereby someone can gain legal title to land by virtue of having occupied it for a long time.

Many people find this to be a strange concept. Why should someone become legally entitled to land that is not theirs, simply because they have helped themselves to possession of it? To some people’s minds, this seems, at first glance, to be nothing more than a kind of legalised theft.

The origins of this concept go back many centuries and lie in the idea that it is in the interests of society as a whole that someone who buys a piece of land should have confidence in the seller’s ability to sell it to them, without having to require proof of title to the land – a “chain of ownership” – going back to time immemorial.

To give a concrete example, if you were buying a house, you would want to be sure that you were getting good title to all of the land included in the sale from the person who was selling it to you, without having to worry about other people raising claims against it, possibly based on events that happened hundreds of years earlier. If there were not this certainty in the law, it would be a recipe for chaos in the housing market and in the property market more widely.

For this reason a rule was developed that, subject to certain conditions being met, someone who had been in occupation of land for 12 years or more got good title; the original owner or occupier, having “sat on their rights” for so long, could not bring legal proceedings to evict them after that time.

Therefore a seller only had to prove his or her title going back 12 years.

Nowadays with the creation of the Land Registry and the development of a system of centralised land registration, the recording of title to land is somewhat more sophisticated, although even now, not all land is registered.

Today, adverse possession can arise in a number of situations. One example may be where squatters take over a building or piece of land. Much more common is the situation where, whether by accident or design, someone’s fence encroaches onto a neighbour’s garden. Similarly, it can arise, for example, where someone encloses and cultivates an area of wasteland or an allotment or the like.

It is all too easy for the legal owner of the land to sit by without taking any action, allowing time to slip by.

The law in this area is complex, and each case depends on its own facts. There are important time limits. A number of different procedures apply to claims for adverse possession depending on whether the land in question is registered or unregistered, the length of time the “adverse” occupation has been taking place and whether or not the parties own adjoining properties.

We are able to provide specialist advice about questions of adverse possession, whether you wish to bring or defend a claim. You can speak to one of our experienced solicitors at a fixed cost initial interview, where we can provide a preliminary view and discuss with you what steps are required, and any funding options that might be available to you.