This note is heavily based on Land Registry Practice Guide 5
Where land is unregistered a squatter can acquire title by their adverse possession of it over a period of time. There is a slightly different procedure and set of standards for registered land: in particular, mere adverse possession does not affect the registered title but – in effect – the squatter can challenge that title.
To succeed, the squatter must show that:
- they have factual possession of the land
- they have the necessary intention to possess the land
- their possession is without the owner’s consent
- all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least the relevant limitation period prior to the date of the application
· Factual possession
In Powell v McFarlane ((1979) 38 P & CR 452, approved in the House of Lords in J A Pye (Oxford) Ltd v Graham  UKHL 30) Slade J said:
“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”
Where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.
· The intention to possess
What is required is “not an intention to own or even an intention to acquire ownership but an intention to possess” (Buckinghamshire County Council v Moran (1988) 86 LGR 472, per Hoffman J, approved by House of Lords in J A Pye (Oxford) Ltd v Graham  UKHL 30). This means “the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow” (Powell v McFarlane (1977) 38 P & CR 452, 471-472, per Slade J, approved by House of Lords in J A Pye (Oxford) Ltd v Graham  UKHL 30).
Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the acts making up that factual possession, but this deduction will not always be made, as Slade J explained in Powell v McFarlane ((1979) 38 P & CR 452, 476, cited with approval by Lord Hutton in J A Pye (Oxford) Ltd v Graham  UKHL 30,  3 All ER 865;  3 WLR 221;  1 P&CR 128):
“In my judgement it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.”
Use of land for access purposes is an example of an equivocal act. Such use over time might give rise to an easement by prescription but is not, by itself, sufficient to establish an intention to possess the land.
· Possession without the owner’s consent
In Buckinghamshire County Council v Moran ( Ch 623, 636) Slade LJ explained:
“Possession is never ‘adverse’ within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner of the paper title.”
· The limitation period
The normal limitation period is 12 years, which must be unbroken.
The period is extended to 30 years for land owned by the Crown (including government departments and companies that have been dissolved), or by the Church of England in some – but not all – capacities.
The normal limitation period can be prolonged by the disability of the legal owner (being under age or mentally incapable), by fraud or deliberate concealment, or by mistake. Where the land is subject to a trust, the limitation periods applicable to the beneficiaries (who may well be under age) as well as the trustees needs to be considered. This can suspend the limitation period when the owner dies until their estate is administered, or when the owner becomes bankrupt, until they are discharged, or while a company owner is being wound up.
If the squatter acknowledges the owner’s title, this stops the limitation period running, but a demand for possession by the owner does not – the owner needs to enforce that demand.
The relevant period of occupation can be built up by a series of squatters occupying the land.
Applying for ownership
If you think your circumstances satisfy all the above requirements, we can help you apply to the Land Registry to be registered as the legal owner. In most cases, our fee for this will be £500 + VAT (we will warn you if your case is different) and there is a Land Registry application fee that is based on the market value of the land. There is no guarantee that the application will be successful, and no fees are refundable if it is not.
If your application is successful, you will be awarded a “possessory title” to the land, which can be upgraded to “absolute title” after 12 years if the previous legal owner does not successfully challenge your entitlement in that time.
12 August 2016