Adverse Possession

During property transactions we can often come across areas of land that are not registered or not included in the homeowner’s title. This can cause delays or difficulties during the process. This could be perhaps a small piece of garden land to the rear, or a front driveway that was not included in the plans when the house was first sold, perhaps many years ago when plans and documentation were not as clear as they are today!  The homeowner may have used this land for years without issue and not even know that this will cause a problem during the conveyancing process, but to sell land you need to prove that you own it.

This is when you may hear the term ‘adverse possession’. Adverse possession is a concept where you apply to own land that you have used for a number of years, but have no documentation to prove that you own it. If the land is unregistered, a person will need to have been in occupation of the land for at least 12 years to be able to make an application. If the land is already registered at the Land Registry, you can apply after 10 years.

There are also other criteria. The land should have been used without consent or permission from other people and without others objecting to your use of it during those years. The use must have been continuous over the years and you must have carried out actions that show your intentions that the land is yours. This could be maintaining the garden as your own or including it within fencing of land that you do have ownership to, so as to exclude others being able to use the land in question.

Once an application has been made, the Land Registry will often send a surveyor to inspect the land and issue a report before taking the application further, they may also prepare a Land Registry compliant plan of the area. If appropriate, the Land Registry will then issue notices to nearby owners of land or property to give others the opportunity to object to an application – so there is no guarantee that any application will be successful.

If the application is successful, you are likely to be granted a lesser class of title to the land, called ‘possessory title’, this alerts anyone in the future how you came by the ownership to the land. In this situation, your conveyancer may also suggest that an indemnity policy is also taken out.

It is obviously best to deal with such situations before you try to sell a property as it can take a little time to deal with which could hold up a sale. We do generally come across the problem during a sale though, and can handle it for you then if needed.

If you would like any further information, please speak to our property team.