The New Law on Adverse Possession

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by Parmdeep Vadesha

A few years ago, a squatter can occupy a piece of land long enough to become its true owner. But with the 2000 Land Registration Act, landowners have reason to be more secure in their property.

The Limitation Act 1980 provides that 'no action shall be brought to recover any land after the expiration of the limitation period of twelve years.' After the expiration of such period, the true owner no longer has the right to recover the land, and the squatter who possessed it gains a superior right. All the squatter had to do was to show that he occupied the land and exercised a degree of physical control over it for at least twelve continuous years. Occupation must also be without the consent of the true owner.

This law has been criticized for being unfair and incompatible with human rights. It has been seen by the Law Commission as 'sanctioning a theft of land' as it creates a presumption that the occupant is the true property owner. For decades, this law has evolved to be the answer to disputes arising from uncertain property boundaries. Critics argue that this law goes against the paper owner's right to peacefully enjoy his property and runs counter to the UK system of land registration

With the Land Registration Act 2002, adverse possession itself will not bar an owner's title to property registered in his name. This act provides a new scheme for adverse possession that requires the vigilance of the landowner to maintain his ownership.

Adverse possession is defined as factual occupation coupled with the intention to possess. Factual possession has three essential criteria. It must be peaceable and open, meaning that the occupation must be obvious to everyone, including the true owner. The squatter does not have to be physical present in the land, because his occupation can be evidenced by grazing animals, for example. Secondly, the squatter's possession must be exclusive, meaning that everyone (including the true owner) is barred from the use of the property. Exclusion can be evidenced by a fence around the property, for example. Finally, the adverse possession must be without the true owner's consent. Consent means that a tenancy agreement or some other relationship has arisen between the true owner and the occupant.

The new law maintains the squatter's right to apply for ownership to be the registered owner after ten years of adverse possession. According to Schedule 6 paragraph 5 of the same law, the equity of estoppel works towards the squatter's favor. Thus, an application can be easily granted, provided it is not successfully opposed by the paper owner.

The law further allows the registered owner to recover possession of his land from a squatter. Proceedings can be commenced at any time a squatter is occupying his land. However, based on the principles of estoppel or if the paper owner is adjudged to be sleeping on his rights, a squatter may be granted ownership and possession. However, years of adverse possession by itself is not a defense.

The Land Registration Act 2002 also provides a new procedure for the squatter to gain ownership through adverse possession. A squatter can apply with the Land Registry after ten years of possession. The paper owner has 65 business days to object. Upon failure of the owner to object, the land will automatically be registered in the adverse possessor's name. However, if the owner validly objects, the Land Registry will reject the squatter's application and the true owner has two years to commence eviction proceedings against the squatter.

The Land Registration Act 2002 is definitely a step towards ending unjust land possession. Still, squatters still have rights that are more than any landowner would want. Therefore, landowners are advised to be vigilant and keep a close eye on the land they own in order to preserve their rights over their assets.

Parmdeep Vadesha is a property investment expert and founder of the largest community of property entrepreneurs on the web who buy below market value properties from distressed homeowners facing repossession, divorce and bankruptcy. He writes a monthly newsletter for over 70,000 property investors worldwide - http://www.Property-System.com

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