In my last blog on ransom strips, I touched briefly upon the tricky area of law that is adverse possession, sometimes called “squatter’s rights”, in the context of protecting a retained strip of land. Since then I have received a few questions about what exactly adverse possession is, and so for September’s blog I present a quick breakdown of the facts...

“Squatter’s rights” – the basics

“Squatter’s Rights” are based on the idea that if an owner of land fails to evict occupiers who are on the land without consent, or fails to interrupt their use of the land, then the legal ownership can pass from the rightful owner to the squatter. If you are a property owner, then this is a very worrying proposition. Someone could move onto one of your vacant properties, “squat” for a while, and then eventually take it from you.

Sorting out the terminology

“Squatter’s rights” is the colloquial term for what is really happening – a claim over land for adverse possession. If you’re already confused, don’t worry. The House of Lords agrees with you. In the case of J A Pye (Oxford) Ltd v Graham they advised that that the term “adverse possession” often leads to confusion and complication. Unfortunately, the Land registration Act 2002 continues to use the term.

The word “adverse” is a bit of a red herring. The issue that the courts must determine is whether the claimant has been in possession of the land in question in the normal sense of the word, over the required amount of time and without the consent of the owner.

How to establish “Adverse Possession”

In order to claim adverse possession of land, the claimant must prove three things:

1. That they have had factual possession of the land; and
2. Possession has been uninterrupted for the requisite period; and
3. They had the intention to possess the land during that period.

Factual Possession

The claimant must show that they have exercised sufficient physical control over the land to the exclusion of all others. Sufficiency is dependent on the nature of the land. By way of example, in the recent case of Thorpe v Frank and another the Court of Appeal held that paving an area of land that formed part of a neighbors front yard amounted to factual possession.

Requisite Period

In general, the requisite period is either ten years for registered land, or 12 years for unregistered land.

Intention

In most cases, factual possession will demonstrate intention. It is worth noting however that if there is a dispute over intention then more evidence will be required.

But isn’t all of this just trespassing?

This is a common question, as most people assume that all trespassing is a criminal. However, trespass in English law is mostly a civil tort rather than a criminal offence.

In 2012 the Legal Aid, Sentencing and Punishment of Offender Act did make it a criminal offence to squat in a residential building. An offence is committed by a person who trespasses in a residential building, who knowingly lives or intends to live there for any period.

It was thought that the Act might provide some protection to land owners in certain claims for adverse possession. However, in Best v The Chief Land registrar and another the High Court held that parliament in enacting section 144 did not intend that criminal trespass should prevent a claim for adverse possession. This means that a trespasser in residential property can make a claim for adverse possession.