The law of adverse possession is colloquially described as “squatters rights”. Adverse possession offers the opportunity for a person to become registered as the owner of land which belongs to another. Land is often described as ‘registered’ or ‘unregistered’ and this refers to whether the owner of the property is known to the Land Registry i.e. they have registered title to the land.
Registered and unregistered land
Land registration became compulsory for dispositions of land in England and Wales after 1 December 1990. Where land has remained in the same ownership since prior to that date, unless the owner has voluntarily applied to register, the land will remain what is known as ‘unregistered’.
The distinction between registered and unregistered land is important in the context of adverse possession law because since October 2003 different criteria apply to securing registration as owner of registered land as distinct from unregistered land.
Broadly speaking it is easier to obtain adverse possession registration of unregistered land than for registered land.
Adverse possession
The essentials to succeed with a claim of adverse possession is that the person occupying (I shall refer to them as ‘the squatter’) must be able to show that they have been in factual possession of the land; without the owner’s consent, and with an intention to possess the land as their own. For example, a squatter erecting fencing around the land is good evidence of factual possession. The true owner having given consent for the squatter to be on the land will of course be fatal to the application.
For unregistered land, if a squatter can evidence factual possession without consent and with an intention to possess for at least 12 years, then they can expect to be registered as owner of the land with possessory title.
By comparison, a squatter in possession of registered land, is entitled to apply for registration as owner after just 10 years’ adverse possession of it (Schedule 6 of the Land Registration Act 2002). The application is to Land Registry, who will then write to the registered owner, inviting them to confirm whether they oppose the application. Assuming the registered owner’s address held by Land Registry is up to date resulting in them receiving a copy of the application, it is highly likely that an owner will oppose being dispossessed of their land. However, if they don’t oppose within the prescribed time limit, then the squatter will be registered.
If the registered owner opposes, then the squatter can only hope to be registered as the owner if one of 3 strict conditions apply:
- It would be unconscionable for the registered owner to dispossess the squatter e.g. if the registered owner had encouraged the squatter to believe the land was that of the squatter, and the squatter had spent money developing it in reliance of the registered owner’s encouragement or representations.
- The squatter is for some other reason entitled to be registered as proprietor e.g. entitled under a Will or had purchased the land, but the legal estate had not been transferred; or
- The squatter has been in possession of land adjacent to their own for at least ten years of the period of adverse possession ending on the date of the application, under the mistaken but reasonable belief that they are the owner of it, and the exact line of the boundary has not been determined, and the land was registered more than one year prior to the date of the application (Paragraph 5(4) of Schedule 6).
In my experience of submitting adverse possession applications, the third condition is the most used. However, note the emphasis of the above criteria, which has become the subject of differing interpretation.
Query, do the words mean that the squatter’s reasonable belief must be for a period of 10 years ending on the date of the application (Interpretation A) or can the period of reasonable belief be any period of at least 10 years within a longer period of adverse possession, which ends on the date of the application (Interpretation B). If Interpretation A were to prevail then any period between the ending of the 10-year period of mistaken belief, and the application to follow, would be fatal to a squatter’s claim.
Examples of cases
In the case of Zarb v Parry [2011], the Court of Appeal felt Interpretation A was the correct interpretation. The point came before the First-tier Tribunal and Upper Tribunal in the case of Brown v Ridley and another[2023]. In the Brown case, there was a gap of about 21 months between the ending of their 14-year period of reasonable belief and the date of the application being submitted.
Both the First tier and Upper Tribunal favoured Interpretation B for Paragraph 5(4) of Schedule 6, and in that case the squatters’ application was successful. Permission to appeal was given, and the appeal leap-frogged the Court of Appeal. The Supreme Court handed down Judgment in the Brown case on 26 February 2025. The unanimous decision was that on a proper construction of the Act, a period between the squatter coming to know that they were not the owner of the registered land, and their application, would not be fatal to them relying upon the third condition.
Summary – adverse possession applications
Having dealt with many successful adverse possession applications, I think it right that any gap between having the reasonable but mistaken belief the land was that of the squatter, and the registration application having become aware that the land was registered to a third party, should not be fatal. The squatter becoming aware that the land is or may not in fact be theirs will necessitate a fact find and often legal and surveyor advice as to the accuracy of that information. An application requires the production of statements and collation of evidence in support, which takes time. Had Interpretation A been upheld then I fear many squatter’s applications would otherwise fail simply by falling foul of the application gap, despite otherwise meeting the factual criteria.
If you require legal advice on adverse possession or seek assistance to submit or oppose an adverse possession application, please contact Helen Williams, partner in our Property Litigation team – 01392 401176 or email H.Williams@stephens-scown.co.uk.