If you have been using, or looking after, a piece of land which you don’t own, there is a chance you could claim adverse possession, and the granted what is known as “possessory title by the Land Registry.
According to the Land Registry, there are more than 25 million registered properties (land titles) in England and Wales. However, there are still a significant number of unregistered plots which have the potential to be claimed through adverse possession.
Looking for specialist Adverse Possession Solicitors? Call our Property Dispute team on FREEPHONE 0800 1404544 or one of our four local office numbers for FREE initial phone advice – no strings attached.
Our solicitors deal with adverse possession claims and other property disputes throughout Wiltshire, Hampshire, Somerset and Dorset and nationwide from our offices in Salisbury, Fordingbridge, Andover and Amesbury.
How our Solicitors can help you
Our specialist property dispute team have extensive experience of a wide range of property disputes, including adverse possession. And that means that we can help you, whether you are making or defending an adverse possession claim, or making defending or trying to enforce a possession order.
• We can screen your case and give you a view on its prospects of success
• We can make sure that your Land Registry application is made correctly, with appropriate supporting evidence
• We can help you avoid the risk of having your application to the land registry rejected – in which case you have to wait two years before making a fresh claim.
• If your claim is opposed, we can represent you at the First Tier Property Tribunal. We understand the complex procedures and timescales involved in a Tribunal application and can ensure that your claim is presented properly and in the best possible light
• We know when to negotiate and when to fight a hearing at Tribunal – and can advise you whether some form of alternative dispute resolution (including mediation) might be appropriate in your case.
NB Our experienced team can also represent those opposing adverse possession.
What kind of property can be the subject of an adverse possession claim?
Most types of property could be subject to an adverse possession dispute – ranging from buildings to access, rights of way, driveways, strips of land, abandoned property, and boundary walls and fences.
What is unregistered land?
Many people do not realise that there two types of land ownership in England and Wales: registered and unregistered. The way your land is registered can have serious implications, so you need to be aware of the differences.
Anyone who has bought or sold a property will be familiar with the Land Registry. Each plot has a unique reference number and a register, which contains details of the owner, a property description and a ‘charges register’ covering mortgages etc.
This information is referred to as ‘title information’ and can include a wealth of material such as public footpaths and any covenants affecting the property. If you have the address, postcode, or title number of a property, you can search Land Registry records for just £3. You can also get a copy of any property register in return for a small fee.
As the name suggests, unregistered land covers any property which is not currently recorded with the Land Registry.
Is there still much registered land?
Surprisingly, yes. Recent estimates suggest that approximately 15% of the land in England and Wales remains unregistered. However, the Land Registry is keen to get all of this land electronically recorded, and gradually the amount of unregistered land is declining.
What happens if land is not registered?
If you can’t find details of a particular plot at the Land Registry, the property is probably unregistered. Your next job will be to try to track down the owner.
With no Land Registry documentation, the owner will need to show proof of ownership by producing deeds and other historic paperwork. This paper trail, known as the ‘root of title’, needs to date back at least 10 to 15 years and include the last change of ownership.
It has only been compulsory to register a change of property ownership with the Land Registry since 1990, so it is safe to assume that most unregistered land has not been sold since then. Unregistered land could be owned by charities, companies and Government agencies, meaning it has not been on the open market in recent decades.
It is estimated that around 15% of land in the UK is still unregistered, with the Land Registry aiming to register all properties by 2030. The good news is that, for a small fee, owners of unregistered land can voluntarily apply for registration with the Land Registry.
What is abandoned or unclaimed land?
With the price of property rising every year, it is unlikely that you will come across much abandoned or unclaimed land. Any piece of land which has being derelict for a number of years could qualify as unclaimed, but first you will need to check that it is not registered with the Land Registry.
If you find a plot which is unregistered and looks vacant, it does not automatically mean that there is not an owner.
How do I claim abandoned land?
Tracking down plots of abandoned land and property is called targeting. There is a legal process to make a claim on abandoned or unclaimed land, but please note that it will take a considerable amount of research and time – using the principle of adverse possession.
What is adverse possession?
Commonly referred to as ‘squatters rights’, adverse possession is legal speak for acquiring property through continuous occupation, without the permission of the legal owner.
The principle behind adverse possession is that owners need to make productive use of their land. Any property which is not maintained can become an eyesore, and the buildings can even pose a danger to life if they are neglected.
The cost of dealing with abandoned properties can fall on local authorities or neighbours, which means the legal owner has technically infringed the rights of others.
How can someone apply for adverse possession?
The Land Registration Act 2002 (LRA) came into effect on October 13, 2003 and laid out a new process for adverse possession applications for registered land.
Firstly, a squatter can only apply to the Land Registry for adverse possession when they can prove that they have been in possession of the land for 10 years. The requirements include being able to show either possession of the land, or an intent to possess the land.
What’s more, the squatter must be what is referred to as in “factual possession” for that entire limitation period. In this context, “factual possession” means an appropriate level of actual and physical control of the land. However, what constitutes physical possession varies in every particular case. But it will often mean more than just using the land, say for access. This is often proved by fencing off the land to prevent others moving in or changing the locks if a building is involved. Repaving a driveway has also been the ground for a successful adverse possession claim.
Essentially, the applicant must be the only person treating or intending to treat the land as their own. however it’s worth noting that an adverse possession claim cannot be made simply on the basis that the landowner walked away from their land and did nothing to use it or enforce their rights. For a successful claim, somebody else needs to take actual physical occupation of it.
The application will be rejected unless the applicant can prove one of the following conditions:
- it would be “unconscionable” not to allow the application
- here is another reason why the applicant should be registered as the owner
- the applicant is a neighbour who believed (for at least 10 years) the land belonged to them. The land was not registered in the past year and the boundary has not been determined.
If there are no objections, the land will be registered to the squatter. Not surprisingly, applications for unregistered land are more successful as it is more likely the owner has not been traced and is unaware of the proceedings. If unsuccessful,and your application is rejected, you will have to wait two years before making a new application.
What kind of evidence can I use to support my claim for adverse possession?
As a result of the nature of adverse possession, it’s not unusual for there to be little if any documentation in existence to support your claim. Whether any documentary evidence you can supply can be extremely helpful.
Here are some examples of the kind of evidence you should look for to support your claim:
• invoices for any money spent maintaining or fencing the land
• photographs (especially photographs going back some years) showing your use of the land, especially if it clearly excludes others from that land or property
• letters or emails sent or received in relation to your claim.
• any other evidence as to the date your occupation of the land started and your ongoing exclusive use of the land
A successful claim for adverse possession will initially result in the Land Registry granting what is referred to as “possessory title” – see below.
Objecting to adverse possession
The Land Registry has a duty to inform the registered owner of the land, who will have the chance to object. If the plot is unregistered, they will serve notice on anyone who has an interest in the property.
If there is an objection to your claim, the Land Registry will refer your matter to the First Tier Property Tribunal. The procedural rules involved in any Tribunal Application are complex and it is essential that the rigid time scales posed are strictly complied with. In due course, the Tribunal will eventually hold a hearing to decide whether or not adverse possession should be granted.
Click here to read more about how the First Tier Property Tribunal works.
Is there a fee payable to the Land Registry with my Application for Adverse Possession?
Yes, and dependent on whether the land or buildings are registered or unregistered, it can range from £70 to £130.
What Is Possessory Title?
Possessory title is the name for a category of ownership granted by the Land Registry, which applies in certain circumstances, including the following:
- where the land owner acquires the land by adverse possession
- where the owner is unable to produce documentary evidence of their ownership
Possessory title means that the land or property involved could be subject to some existing third party rights or restrictive covenants.
Click here to read about How to Sell Land With Possessory Title
Will I be able to borrow money to buy land or buildings with just a possessory title?
Although buying with cash is often easiest when buying land with possessory title only, there are a number of mortgage lenders who are still happy to lend on this limited level of title.
Cash buyers are usually associated with possessory title purchases, but the good news is that many mortgage lenders will still lend money if ownership is based on adverse possession.
Can indemnity insurance protect me following an Adverse Possession claim?
As we have shown, if you have unable to prove that you are the true owner of property, and have successfully persuaded the Land Registry that you are entitled to adverse possession, your ownership of that property will initially be limited to “possessory title”. But until you are able to convert that to “absolute title”, there is a risk that someone could return and try to prove ownership of the land.
This is why indemnity insurance is normally necessary for anyone purchasing land or property with “possessory title” only. That policy will cover the buyer against any financial losses, including legal costs incurred to defend an adverse possession claim if someone does attempt to reclaim the land.
How can I avoid adverse possession claims?
Fortunately for property owners, there are plenty of positive steps they can take to reduce the threat of an adverse possession claim.
- Undertake regular inspections to check that there are no squatters on your property. Make a comprehensive record of inspections.
- Take immediate action to remove anyone who moves onto your property. Don’t be afraid to take legal possession proceedings.
- If someone else is already on the property, you will need to find out when the occupation began by asking neighbours and previous owners.
How do I find out who owns land?
Anyone can legally and anonymously access the Land Registry documents for any property in the UK. Tracking down the owner of an unregistered plot of land can be a daunting and time-consuming task. Fortunately, the Land Registry offers some helpful advice:
- Ask neighbours or anyone who has lived nearby for many years.
- Enquire at the local pub, post office or shop.
- Check the details of neighbouring registered properties for clues, as there might be references to deeds or documents relating to the unregistered plot.
- Search local authority records, including planning applications.
- Check the electoral register.
In addition, in addition you might send out an appeal on local Facebook pages or other social media channels asking for information.
Is there a difference between registered titles and title deeds?
In the eyes of the law, a registered title and a property with ownership based on title deeds are effectively the same. Deeds refer to the old paper documents which record the chain of ownership for a piece of property. These include the conveyancing paperwork, contracts for sale, wills, mortgage information and leases.
The entry on the Land Registry provides a summary of all these details. The paper deeds are no longer important once a property has a digital register. Today, all the Land Registry records are electronic so there is no need to keep paper title deeds once land has been registered.
The Land Registry simply scans the deeds before returning them to the solicitor or conveyancer who is representing the buyer. For those wanting to find the original deeds, they are probably in the hands of the solicitor who handled the property purchase, although on registration, these deeds will probably be passed from the solicitor to the owner.
Do I need my title deeds?
Once a property is registered with the Land Registry, there is no need to retain the original deeds as a proof of ownership. However, you may wish to keep your copy as it will contain useful information about boundaries or covenants.
How is land recorded at the Land Registry?
Each individual property has its own unique number, and the information contained about that property is recorded in the following 3 ways:
- The ‘proprietor register’ -this sets out who actually owns the land
- The ‘property register’ – describes the property, and is linked to a map
- The ‘charges register’ – this details of any mortgages or charges over the property
Buying unregistered land – what are the implications?
Providing that you have traced the rightful owner with the title deeds, buying unregistered land is a simple process. Because every sale must be declared to the Land Registry, you will be able to prove that you are the legal owner when you want to sell.
Establishing the market value of an unregistered property can be tricky, particularly in rural areas where there are no similar properties nearby. Any property with planning permission will naturally demand a much higher price.
Unregistered land without title deeds
The process becomes much more complicated if the unregistered land or property has no title deeds. It might be possible to draw up a new version of the deeds, but this will be expensive and could prove unsuccessful. The real problem here, as with many other areas of law is proof. Without title deeds, how do you go about proving ownership of unregistered land?
Voluntary registration with the Land Registry
Remember that land can be registered with the Land Registry voluntarily, even if no transaction has taken place. In fact, the Land Registry recommend that you do so. In some instances, it might be worthwhile to get the current owner to register the property before the sale.
An important thing to remember is that registered land is guaranteed by the Government, so if the register is found to be wrong, the Land Registry will usually pay compensation.
The risk of fraud
Finally, a word of warning: fraudsters can easily assume the identity of a property owner to sell the land to an unsuspecting buyer, so make thorough checks. Instances are on the rise, but thankfully the Land Registry has a duty to compensate either the genuine owner or the purchaser, depending on the individual case.
Is it worth registering any unregistered land?
As part of its quest to have all of the U.K.’s land properly recorded, the Land Registry has for some years now encouraged voluntary registration and is currently offering a 25% reduction on the fee for first registration based on adverse possession. Fees for first registration are calculated according to the value of the land being registered:
Registration has a number of advantages including the following
- It can help avoid possible boundary disputes
- You don’t have to worry about stride or lost deeds. Instead you have a permanent record of your land easily accessible online
- It helps to protect against fraud and squatters
- It can give a chance to solve any problems contained in the title deeds.
- Buying and selling registered land is usually swifter and more straightforward
The Land Registry provides a state guarantee of title and may pay out compensation if the register contains an error and you suffer a financial loss as a result.