Origins of adverse possession
The law — of course — protects people who own land: it allows them to take action against a range of legal wrongs, such as encroachment and disturbance (noise, smoke, smells fumes and so on). But it also protects people who are merely in possession of land, allowing them to take legal action too, and altimately obtain title to it. Hence adverse possession law. “Possession” in this context means in effect “control”, as is the case when someone is claiming the right to be on the land, and to decide what happens there. The law will be on the side 0f such a person, against everyone except the true owner, if he or she should appear. This will typically happen if the true owner has disappeared and is unknown, or is known but has no interest in preserving their interest in the land in question (which maybe only a small part of a much larger holding).
The approach of the law is essentially a matter of policy: protecting a person in possession of land, until someone with a better right to the land comes along, is an important way of preventing disputes. Being in possession of land in this way does not of itself make the person concerned the owner. But at this point, another legal issue comes along: “limitation”. The law allows action to be taken to address legal wrongs, but only for limited periods of time. If it were otherwise, matters such as the ownership of property or contractual obligations, long regarded as settled, could be upset by something which happened in the remote past. Limitation periods vary for different sorts of legal wrong. For example, when a person who is injured as a result of someone else’s negligence, they must generally (there are exceptions) bring legal proceedings within six years from the date of the injury. After that, the right to take action is gone. The same is true when someone other than the true owner is in possession of land. That person is a trespasser, from the point of view of the true owner; but after the limitation period has expired (see below) the right to take action and remove the trespasser will have gone. The court will then recognise the trespasser as the owner of the land. To put it another way, the trespasser can acquire ownership by being in “adverse possession” — that is, adverse to the true owner — for the relevant period of time.
The law of adverse possession
Land is not all the same (see below), and what is required in order for a court to recognise that a trespasser has the better right to the land than the true owner, will inevitably vary from case to case. Judgments of the courts, over the years, have displayed slightly different approaches, and different emphases. But the ingredients of the law are essentially as follows:
• A person claiming adverse possession must show that they have excluded the true owner, and anyone else, from possession of the land for the necessary period.
• They must show that they have intended to possess the land. This will normally follow from the first ingredient. The intention does not have to be an intention to own the land: an intention merely to be in possession of it for the time being will suffice.
The law of adverse possession applies to land generally. Its application is perhaps clearest in the case of buildings. If someone takes possession of a building, changes the locks, and so manages to exclude the true owner, they are likely to be regarded as in adverse possession and ultimately to acquire ownership. Open land is different. Here the courts tend to ask whether the person in possession has done everything which the owner of the land would do. Hedges and fences can be approached in the same way. (On “boundary markers”, please see our Background note on boundary law.) In some cases there has, unfortunately, been confusion about the question of excluding people from land. In theory at least, the position is as follows. When someone (“X”) is claiming adverse possession:
• It should not matter that other people are coming on to the land in question, providing they are not challenging possession by X. This would be true, for example, of people exercising a private or public right of way — take the case of a footpath across a field. It will also be true of some trespassers. They will be on the land unlawfully; but they will not be in possession of it, i.e. controlling it. They might just (for example) be using the land as a short cut to somewhere else.
• It will matter if someone else has taken possession of the land before the limitation period has expired. Suppose that X has taken possession of a strip of land but Y has then fenced off part of the strip and is treating it as his own, thus ending X’s possession of it. X may obtain ownership of the rest of the strip, but not the part fenced off by Y (who may in due course be able to obtain ownership of the fenced off part).
The aim of the Land Register is to be a complete record of land and rights over it. The law of adverse possession, as described above, took effect without reference to the Land Register, and is still the law for land which is unregistered. The limitation period (see above) is 12 years. For land which is registered, there are two main differences:
• The scope for claiming land by adverse possession is much reduced. Leaving aside some rather technical possibilities, claims will only succeed (a) if the registered owner of the land does not object, or (b) if the person making the claim owns some adjoining land, and reasonably believes that the land in question belongs to him. (In practice, this will tend to apply to strips of land along the boundary between the two properties.)
• The limitation period is 10 years rather than 12.
Help from Property Law Advice
For the sorts of issues which arise in practice, and on which we can offer advice, please see our Adverse possession page. If you’d like a quick response, to see whether we can help, please see our Initial enquiry page.