Staking your claim: Using the law to obtain Freehold to unregistered land

24 August 2015

Colloquially known as ‘the squatter’s doctrine’, there are now two distinct processes for acquiring the freehold title to land by adverse possession: one for unregistered land and the other for registered land. This article concentrates on the issues raised when squatting occurs on unregistered land.

One of the main objectives of the Land Registration Act 2000 (the “Act”) is to encourage the registration of unregistered land so that the central register at the Land Registry is a “complete and accurate reflection of the state of the title”.[1] No more illegible deeds or labyrinthine Epitomes of Title – all encumbrances are to be recorded on one public Title Register.

Despite the introduction of the Act and the change in policy, the doctrine of adverse possession – that is the acquisition of the freehold title to land by taking possession of it for a sufficient period of time – continues and is a surprisingly common method of acquiring land. The principle has been retained in the Act despite criticism that it encouraged the taking of others’ land by squatting and should be consigned to the history books.

To the contrary, the doctrine endures as the law regards an owner of land to be under a duty to protect his own interests; a positive burden on landowners to act to stop squatting should it happen or potentially lose their land to an adverse possession claim. In other words, landowners should not “go to sleep on their claims”[2] and should actively protect their interest in land from trespassers.

Why is there still unregistered land?

More than 80% of the land in England and Wales is now registered.[3] Almost a quarter of the land remains unregistered because registration is only compulsory under the Act when a disposition takes place. Some parcels of land (especially those owned by large landowners such as the Crown or the Church) have not been subject to a disposition for hundreds of years and first registration has therefore never been triggered.

One of the main problems with registering land is that the boundaries can at times be unclear. This may be because of inaccurate or contradictory plans, highway deviations, inaccuracies at first registration of land or the incorrect placing of boundary fences.

Boundary issue

A common issue that we see, for example, is a strip of unregistered land between a registered property and the highway which has been occupied by the neighbouring landowner for a number of years, but the identity of the true owner is unknown. Alternatively, the boundary of the registered parcel may simply have been placed wrongly by the Land Registry on first registration because of an unclear historic conveyance plan. A claim for adverse possession may be advisable in this case, as the owner of the registered property can assume ownership of the unregistered land for having had possession of it.

A strip of unregistered land has the potential to be a deal breaker. The unregistered land may encompass the only access route from the adopted highway to the subject land and there is a risk it could be used as a ransom strip by the true owner. It is important in such circumstances that the squatter applies for adverse possession to ensure greater security of tenure.

What is an adverse possession claim?

A claim for adverse possession of unregistered land can be brought by a party that has squatted on the land for a period of 12 years of more.

The word ‘squatter’ summons images of rowdy troublesome individuals forcing their way onto private property against the owner’s wishes. In the context of adverse possession, however, a squatter is simply a party which:

(1)   Has actual physical possession of land; and
(2)   That possession is exclusive to that person only; and
(3)   That possession is without the permission of the landowner.

A claim is made to the Land Registry which will consider whether the applicant has sufficient physical possession of the land to the exclusion of others.

As part of its thorough checks the Land Registry will review historical editions of the Ordnance Survey map, and it may send a letter to the last known owner of the land (if one can be ascertained) and send an officer to inspect the land.

It is difficult to predict whether or not an application for adverse possession will be successful. The Land Registry may take into consideration the placing of physical boundaries as evidence of the applicant’s animus possidendi (intention to possess). If land possessed by a squatter has not been fenced or walled in, it is likely that the Land Registry will reject an application on the grounds that possession is not exclusive.

If a squatter can prove to the Land Registry that it has sufficient physical and exclusive possession, as well as animus possidendi, the Land Registry will grant possessory title. Possessory title is not an absolute title to the land but is instead evidence of ownership by actual possession. The title can be upgraded after 12 years. The moral of the story? If it’s yours and it’s unregistered, fence it in!

Kerman & Co regularly advises clients on issues such as those raised above. If you have experienced any of the issues raised in this article please contact our property department for further details of the services that we can offer to you or your business.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice.