Adverse possession is the process of there being someone, without the title to the land to own it under the law who is able to become the legal owner of the land. Hence the name adverse possession.
But what does this mean and how does it work in England?
Also, you may wonder why this is even allowed in the first place and how this process works in Scotland. So, If you’re curious to learn more about this intriguing legal process, keep reading to find out!
What is an adverse possession?
If someone doesn’t have the title to the land to own it they can still become the legal owner under the law. If the property was possessed by the person who is trying to become the owner of the property for a long enough period of time then this is what happens.
This process can apply to any type of land and building including just land, a flat or even a house. You may now wonder if it is so easy to become the owner of land without owning it then why is this not a common occurrence?
The answer is the process is far more complicated in real life.
Examples in real life of adverse possessions
To help you understand how adverse possessions work, I came up with some examples of adverse possessions in real life.
For instance, if there was someone living on the waste land someone owns in a freehold but they don’t have the leasehold title and in fact, they don’t have any title at all, if they are able to live there for several years, then eventually they may be able to claim ownership.
You don’t necessarily have to live there either as if this person is able to show that they have been taking care of the land and this is part of their livelihood and they have perhaps formed an income source around this land, they may still be able to claim adverse possession.
Why is adverse possession allowed?
In short, the reason why adverse possession is allowed even though it may seem immoral or an easy way to gain ownership of land without paying anything is because without adverse ownership, a lot of land will be left unclaimed and derelict.
It is better for land to be owned by someone if the land was going to be unclaimed or unkept for otherwise rather than be unusable. Especially if it is not clear who the owner is or how to begin assigning a title to the land to someone.
In addition, it is often better to protect innocent third parties who would be involved in the land without the knowledge that the occupant of the land is living there illegally, hence there is some level of leeway given.
How does it work in Scotland?
As you may imagine, because this article goes over the law in England, it works slightly differently in Scotland and you can find out more about claiming a title on their official website here.
Instead of members of the public in Scotland being able to claim adverse possession, they do this by being assigned the land through “prescription” by the Scottish government.
The law here doesn’t abide by the rules in the law and property act 1925 so you would have to do your own research.
How does the adverse possessor of land become the owner?
Essentially, there can be a new owner of the land who is known as the adverse possessor if they have lived on the land for a long enough time. This is further understood by delving into squatter’s rights which is a part of the law that relates to adverse possessors.
If the government thinks that the person has lived there for a long enough time and it is clear that there may be legal issues down the line and the land of the property may become a nuisance for people, then they may grant the squatter the right to own the title
Squatters rights
Squatting is where someone moves into a property without the owner of the land’s permission and begins to live there. This is common in buildings where there is not much maintenance done such as derelict homes and abandoned buildings.
The owners either give up on the land or allow squatters to live there because they don’t want to deal with the issues within the property.
For a freeholder and landlord, it is useful to note that if you find a squatter living in a property, once you have ordered them to leave then they must leave if you have a residential property but the laws change when the premises are classed as commercial.
This is because it is not illegal to squat in a non-residential property; it is instead a civil offence. However, landlords should be able to get them out with the right solicitor, legal help and understanding how to stop adverse possession.
How many years before squatters are able to claim adverse possession?
The magic number for when a squatter is able to legally make a claim to the land registry at this website and claim ownership of land or property whether that be commercial or residential is 12 years for unclaimed land with no title and 10 years for land with an owner.
Having said this, the squatters will also have to be able to say that they have added sufficient value to the land and that their life will be severely disrupted if they were to move out.
In cases like this, it is deemed reasonable for a squatter to buy or in some cases be granted the title to the land and become the rightful owner.
Because of the long length of time that it takes to truly become a squatter who is able to successfully claim adverse possession, cases like this are rare but they are certainly possible.
What is the difference between registered and unregistered land?
Understanding what the difference is between registered and unregistered land is important when it comes to adverse possession because unregistered land tends to have a higher success rate of adverse possession by squatters and those living on the land illegally.
This means if you know you own land but it is unregistered with the land registry, you are at a greater risk of adverse possession.
Adverse possession on registered land
In order for there to be adverse possession on registered land, the case would have to be quite rare as after the law that came into effect in 2002 concerning the Land Registry Act, land that is protected by the land registry is far less likely to be successfully adversely possessed.
In cases where things do work out for a squatter, most of the time the freeholder of the land will have to not put up a fight and have no objection to a squatter’s appeal to claim their land and the squatter will have to live there for ten years.
Most of the time, the owner of the land would rather at least sell the land or property for what they can get, even if they don’t plan to renovate the property and perhaps turn it into a commonhold.
Adverse possession on unregistered land
Adverse possession on unregistered land is slightly easier for those claiming but they do have to have lived on the land for a slightly longer period of time (12 years rather than 10).
Nonetheless, the process is still fairly hard because throughout the 12 years there is a good chance that the owner of the land will come forward and register themself with the land registry.
Once this happens the title is unable to be reverted to the squatter because the land is now registered. The best bet for a squatter in this case, would be to attempt to negotiate with the owner of the land and potentially buying the title off of them there and then. This is known as a conveyance
How do you claim adverse possession in practice?
So, you understand how this works and the length of time that is needed in order for there to be an adverse possession of land or property. But how does this work in theory?
Follow the below steps to be guided through it as the process isn’t too difficult but there may be a step or two you miss out that makes your claim harder to be approved.
Identify the circumstances in which you can claim
In general, the land registry does not care about the intentions of the squatter if they are looking to claim land. It is more to do with the length of time that the land has been being used and the value that has been added.
For example, in one case, there could be someone who knows that the land they are taking care of isn’t theirs but takes care of it due to the reflection that this land has on their own property or land like doing the weeding of an area around their house that doesn’t belong to them.
On the other hand, there could be someone who thinks that the land they have belongs to them because of there being a wall or boundary that was built in the wrong area. Down the line, there could be an adverse possession on this land.
In either case, the land registry will treat the cases the same. As long as it is shown the land has been taken care of for the right period of time and there is no claim on the land by another registered owner, the land will be possessed.
Understand that someone in adverse possession can rely on adverse possession too
This is something that sounds complicated but in theory isn’t that hard to understand. Essentially, if you buy land and the previous owner of the land is shown to have been taking care of the land and acting like they own it.
You, as a new owner, can continue this practice of taking care of land that does not belong to you to continue the streak of time in which you are shown to be living on the land that is owned by someone else.
So, if the old owners took care of the property for 6 years, you as a new owner can take care of the property in question for another 6 years and accomplish the 12 year period of time where the land was shown to be possessed.
Hence you are able to go the land registry and claim the twelve years of occupancy even though you have only been there for six.
In this way, if you understand the law of adverse possession, you can find deals where this is the case and claim land sooner than you thought. With this new land you can increase your profits by perhaps deciding to build a leasehold or freehold and issuing section 146’s to bring in new tenants.
Defending yourself against an adverse possession
If you want to defend yourself from this happening to you as a landlord, the first thing you should do is make sure that any land you own is registered. If you cannot do this, periodically go back and check if the land you have is being lived in or being taken care of by someone else.
If you find this is the case then this would be your chance to get rid of any squatters or perhaps show that you are taking care of the land or property yourself.
Your next steps in the case of squatters
To put things simply, you should not take matters into your own hands, contact the police and contact a solicitor if you have to. You may be breaking the law yourself if you do so hence it is always best to play things safe.
In summary
Adverse possession is the process whereby someone without the title to a property can become the legal owner of it if they have possessed it for a long enough period of time and this can apply to any type of property, including land, a flat or a house.
So it is without a doubt that someone with land or a property may be worried by this part of the law. The truth is, while the process may seem easy, it is far more complicated in real life, as demonstrated by some examples above.
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