Adverse Possession

Adverse possession describes the act of occupation and use of a parcel of land by an individual or organisation that does not legally own that land. Where certain criteria are met, it may be possible to lodge an application with the Land Registry to obtain legal title to land being occupied, through that possession.

Adverse Possession

The key characteristics of adverse possession are an exclusive use (to the exclusion of third-parties) of a parcel of land by an individual or organisation, where the latter has not purchased or otherwise obtained legal title to it through formal means.

A successful application for adverse possession will effectively “dispossess” any true legal owner of land (if there ever was one) from their legal title to a property, by virtue of the carrying out of certain qualifying activities and exclusive possession by a third-party, who has not otherwise acquired the legal title to land through inheritance, purchase or transfer.

Examples of Adverse Possession

There is no exhaustive list set out in law that describes if and when an adverse possession claim might be successful.

A lot will depend on the circumstances of a matter and the length of time certain activities have been carried out.

However, examples may include:

  • the fencing-off and enjoyment of additional, unregistered land as part of a larger garden, by an owner of residential property – used since the main house was purchased
  • the possession of a parcel of land by a commercial organisation for storage, which does not form part of the legal title to commercial premises previously purchased
  • the possession, use and enjoyment of a parcel of land as an ancillary parking space to commercial or residential premises
  • the occupation and exclusive use of a field or parcel of bare land for grazing, storage or other recreational purposes

How We Can Help With Adverse Possession

Adverse possession can be a complicated area of law – and there are different approaches required as to whether the land is registered or unregistered.

We strongly advise that if you are considering launching a claim for adverse possession, you do not try and do so yourself, as there are many pitfalls and legal considerations upon which you really ought to seek our professional advice.

It is necessary to show factual possession of land (i.e. exclusive, physical control). If a parcel of land was previously open, fencing-off with a locked access gate (to which only you hold the key) can be a useful example of taking over such possession.

You also need to demonstrate genuine intention to occupy. The physical acts of control, occupation and use will need to be proven through a statutory declaration or statement of truth (akin to a witness statement), together with photographs and plans, where possible.

It is crucial that you occupy the relevant land without the true owner’s consent. If land is occupied under a lease, licence or any sort of formal permission, a claim for adverse possession will likely fail. If you do satisfy the legal criteria to claim adverse possession, we will describe the options available to you and provide a quote for drafting the correct application and supporting legal documents.

There is no exhaustive list of ways in which to prevent adverse possession and if you are a property owner who is at all concerned, we strongly advise you to approach us for bespoke advice.

In general, we would suggest:

  • where you own land and/or buildings that are situated away from your main place of business or residence, regularly visit and check to make sure that no third-parties are occupying the property or storing items upon it
  • if you are content to allow your property to be occupied by a third-party, for any use, contact us to ensure that a formal licence, lease or tenancy is drafted, agreed and entered into
  • if your land is unregistered, consider contacting us to receive advice on voluntary first registration at the Land Registry, so that a central, electronic record of your ownership is available.
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