Adverse Possession: 20 years on from the reforms

Adverse Possession: 20 years on from the reforms

Adverse possession is a method of acquiring the title to land simply by occupying it without permission. The basic requirement is that a squatter must possess the land exclusively, generally excluding all others from it, and also show an intention to possess it.

Prior to the Land Registration Act 2002 (“LRA 2002”), if a squatter could show adverse possession for a period of 12 years, they could acquire good title to the land.

The LRA 2002, which came into force on 13 October 2003, restricted opportunities for adverse possession significantly. A squatter who wishes to claim adverse possession must now put in an application once ten years of possession without any form of consent has elapsed. At this point H M Land Registry will notify the registered owner, to determine if there is any objection to the claim. Only after the registered owner fails to oppose will the squatter then acquire the title.

Milton Keynes Council v Wilsher and another

Adverse possession can be a tricky field to navigate, sometimes quite literally.

In this recent case, Milton Keynes Council (“Claimant”) acquired title to a farm in Milton Keynes. There were three fields (“Land”) forming part of that farm which adjoined a traveller’s site. Mr Wilsher, (“Defendant”) was a traveller and small livestock farmer, who resided at the traveller’s site. He used the Land for grazing animals.

The Claimant claimed that the Defendant was trespassing on the Land. The Defendant argued that his father obtained legal title by adverse possession for at least 12 years before 13 October 2003, and that he had succeeded to the title. He also put forward a second argument based upon proprietary estoppel, but that argument is not considered within this article.

The Defendant was able to show that both he and his father exercised a good degree of control over the land:

  • A number of witnesses confirmed that he and his father had grazed horses over the Land for a significant period of time
  • He was able the show that his father had installed a concrete bridge on the Land, through the course of his own recollection during cross-examination.
  • A worker, Mr O’Brien, conducted significant work on the Land, and was given permission to camp there by the Defendant’s father.
  • He installed a locked gate and erected a “Private Property” sign. Whilst this took place towards the end of the period of twelve years leading up to October 2003, the Judge found it showed a continuing approach to the Land by the Defendant, following on from his father.
  • A wake for the Defendant’s father was held on the Land in 2004, and whilst this fell outside the relevant period, the judge found that it showed the Defendant exercising a degree of physical control that would be expected by the owner, and the attitude he had towards the Land.

As a result of the various factors above, the Judge held that the Defendant had satisfied the requirements for adverse possession, possessing the Land with his father from at least 1990, and excluding others from it.

Lessons learned

Even though the Land Registration Act came into force almost 20 years ago, curbing fresh claims for adverse possession, Milton Keynes Council v Wilsher highlights how it can be combined with succession of title in order to succeed.

Landowners should be alive to any activity occurring on their land, especially if it has carried on for significant periods of time unchecked.

When purchasing land, a buyer should beware of anyone using any part of that land, and make sufficient enquiries so as to satisfy themselves there is no dispute as to possession. If in doubt, it is advisable to seek title indemnity insurance, which covers potential adverse possession claims.

For more information, please contract Adrian Bennett.