Adverse possession: claiming land you have occupied, and defending your title

What counts as adverse possession

HM Land Registry’s practice guide 4 sets out three elements, all of which must be shown for the whole period:

Vague statements such as “exclusive use” are not enough: the statement of truth or statutory declaration must describe the specific acts of possession. Land that is a highway maintainable at the public expense cannot be claimed.

Registered land (England and Wales): the 10-year procedure

Since the Land Registration Act 2002 (Schedule 6), 12 years’ adverse possession of registered land does not by itself affect the owner’s title.

1. Application. After at least 10 years of adverse possession ending on the date of the application (60 years for Crown foreshore), the squatter applies on form ADV1, with a statement of truth (form ST1 is optional) made not more than one month before the application. A plan is needed if only part of a title is claimed.
2. Inspection. HM Land Registry usually arranges for an Ordnance Survey surveyor to inspect the land.
3. Notice. If the claim looks more likely than not to be valid, notice goes to the registered owner, any registered lender, a superior landlord and anyone registered to be notified. They have 65 working days to reply.
4. The owner’s options. Consent, object (for example, no 10 years’ possession), give a counter notice on form NAP requiring the application to be dealt with under paragraph 5, or both object and counter-notify. An objection that is not groundless and is not settled goes to the First-tier Tribunal (Property Chamber).
5. No reply. If nobody objects or serves a counter notice in time, the squatter is registered as owner.

The three conditions that survive a counter notice (Schedule 6, paragraph 5):

• Estoppel: it would be unconscionable for the owner to dispossess the squatter, for example where the owner knowingly let them build on the land believing it was theirs.
• Some other right: for example, the squatter inherited the land, or paid for it but the transfer was never completed.
• Boundary mistake: the squatter occupied land next to their own for at least 10 years in the reasonable but mistaken belief that it was theirs, the exact boundary has not been determined, and the land was registered more than a year before the application.

The squatter must say in form ADV1 which condition they rely on; otherwise a counter notice leads to rejection.

After a rejection. If the squatter remains in adverse possession for a further 2 years from the rejection, they can reapply and will be registered whether or not anyone objects, unless they face possession proceedings, a judgment for possession in the last 2 years, or eviction under such a judgment. The owner therefore has at least 2 years to evict or to regularise the occupation, for example with a licence.

Cases where no application can be made, according to the guide: the squatter is a defendant in possession proceedings or has had a judgment for possession against them in the last 2 years; the owner lacks mental capacity to deal with the issue; or the land was held on certain trusts during the 10 years.

Unregistered land, and rights acquired before 13 October 2003

Practice guide 5 covers land that is not registered, and registered land where the squatter had already completed the limitation period before 13 October 2003.

• The period is 12 years (section 15 of the Limitation Act 1980), or 30 years against the Crown.
• Time stops running if the squatter signs a written acknowledgement of the owner’s title; a written offer to buy the land counts as one. A demand for possession from the owner does not stop time.
• The application for unregistered land is made on form FR1, usually with a plan, with an inspection fee.
• HM Land Registry generally grants only a possessory title unless it is satisfied the owner’s title has been barred; after 12 years in possession, a possessory title may be upgraded to absolute (section 62(4)).

A first registration based on adverse possession is treated as a voluntary application, so it gets the reduced Scale 1 fee: see first registration of unregistered land.

Fees (HM Land Registry)

How to protect your own land

• Register it. Registered land is far better protected than unregistered land: an owner is notified and can block the claim. See first registration of unregistered land.
• Keep your contact addresses up to date at HM Land Registry, so the 65-working-day notice reaches you. A missed deadline means the squatter is registered.
• Respond with a counter notice, not just an objection, if you want paragraph 5 to apply: ticking only “object” loses that protection once the notice period ends.
• Act within 2 years of a rejected claim if the occupier stays.
• A person with an interest that would be harmed (for example, a lender or a beneficiary) can ask to be notified using form ADV2.
• If the issue is really a misplaced fence, HM Land Registry suggests an application to alter the title plan or a determined boundary instead: see property boundaries.

Scotland and Northern Ireland

Scotland works differently, through positive prescription. Under section 1 of the Prescription and Limitation (Scotland) Act 1973, a right becomes exempt from challenge after 10 years of open, peaceable and uninterrupted possession founded on a recorded or registered deed (20 years against the Crown for foreshore). The section does not apply to real burdens, servitudes or public rights of way.

Northern Ireland: article 21 of the Limitation (Northern Ireland) Order 1989 bars an action to recover land after 12 years (30 years for the Crown, 60 for Crown foreshore). Payotte did not review the Land Registry of Northern Ireland’s procedure for registering a squatter.

Which professional to consult

A conveyancer or property litigation solicitor prepares the ADV1 or FR1 application and statements of truth, or the NAP response for an owner, and handles any tribunal referral. A surveyor can prepare the plan of the land claimed. Before buying land with an informal extension of a garden, ask your conveyancer whether it lies within the seller’s title register.