From Trespasser to Titleholder: Adverse Possession Explained

There are some circumstances where an individual can claim to be the owner of land or property that they have used and/or controlled without the permission of the registered owner. The individual needs to have used or controlled the land or property in the requisite manner, and for a certain period of time. Many people have heard of the term "squatter's rights", which is often used interchangeably with the true term "adverse possession". There is a fine distinction between the two which is as follows:

• Squatting occurs when someone deliberately enters property without permission and lives (or intends to live) there. Squatting in residential buildings is a criminal offence and can lead to 6 months in prison, a £5,000 fine or both.

• Adverse possession, on the other hand, is the process in which an individual can claim ownership of land that they have used without the permission of the owner. It is not limited to residential premises or buildings, and can include parts of land (such as gardens and driveways).

The latter is the subject of this article and it should be noted that the term "squatter" will be adopted throughout this analysis for ease. Adverse possession is a concept which is, arguably, rooted two ideas. The first is that land should not remain unused or neglected, and it should be utilised to its full potential for the betterment of society more generally. The second is that individuals should be rewarded for actively possessing, maintaining and or improving land by being given the opportunity to acquire legal rights to it over time. It some ways, it can be seen to be a deterrent to apathetic landowners (thus preventing a situation whereby land or property falls into disrepair). It can also be seen to be an incentive to improve and maintain neglected land.

This article explores the elements required to establish adverse possession of land, however, it does not consider the two schemes with govern the process for claiming acquisition of land by adverse possession.

The Requirements

To claim title by adverse possession of registered or unregistered land, the squatter needs to prove the following two elements:

1. The uninterrupted factual possession of the land by the squatter for the requisite period without the proprietor's consent; and

2. An intention on the part of the squatter to possess the land during that period of possession.

Factual Possession

To satisfy the element of factual possession, the squatter must be able to demonstrate the following:

• That they had a sufficient exclusive degree of physical control or custody over the land;

• It was for the requisite continuous period; and

• It must be adverse to the interests of the legal owner.

First, the squatter must show that they had a sufficient degree of exclusive physical control or custody over the land: Pye v Graham [2002] UKHL 30. The question of what amounts to a "sufficient degree of exclusive physical control" will depend on the circumstances as first highlighted in Powell v McFarlane (1979) 38 P & CR 452 (judgment not available online). The courts will therefore consider this point on a case by case basis. In particular, there will be a focus on the nature of the land and the way that type of land is commonly used. Typically, however, the squatter must have used or been dealing with the land as if the owner would be expected to deal with it. For example:

• In Redhouse Farms (Thorndon) Ltd v Catchpole (1976) 244 EG 295 (judgment not available online), where the land was for shooting, the act of shooting over it was enough. However, more will usually be needed to establish factual possession.

• In Treloar v Nute [1976] 1 WLR 1295 (CA) (judgment not available online), a piece of agricultural land was regarded as factually possessed when animals were grazed on it, spoil dumped in a gully, timber and stone stored on it, and squatters rode motorcycles on it. However, even in those circumstances, this was seen as borderline.

The question of factual possession and what constitutes a sufficient degree of exclusive physical control was illustrated in Thorpe v Frank [2019] EWCA Civ 150, where the Court of Appeal held that the repaving of a forecourt could amount to possession. In Thorpe, the squatter repaved and altered the surface level of an area of the forecourt which formed part of the neighbouring property. This was done without objection from its owner. There are two key takeaways from Thorpe. First, where the case concerns open land, it is was generally impossible to secure every part of the boundary in order to prevent intrusion. Second, whilst there was no authority that paving with a permanent surface had, on its own, been found to constitute possession, in several cases, the making of physical changes to the surface of land had been material in determining that possession had been taken. In those circumstances, the paving of the forecourt was sufficient.

Additionally, in order to satisfy the "exclusive" element of factual possession, no one else must have had factual possession: Buckinghamshire County Council v Moran [1989] EWCA Civ 11.

The individual must also have been in factual possession of the land for the necessary period of time. The necessary period of time which will apply will depend on which of the two following circumstances the case falls into.

• The necessary period is ten years under the Land Registration Act 2002 ('the 2002 Act') which applies only to registered land. This would need to run from the date of 13 October 2003 when the 2002 Act came into force.

  
  

• Alternatively, it is a period of 12 years if the land is unregistered, or if it to registered land but the period of possession relied on ends before 13 October 2003.

The timeframes which are referenced must be continuous. It is very easy for the true owner to interrupt the squatter's possession: a very short period of time is required. However, the act of interruption must end the squatter's exclusive possession as opposed to simply challenging the squatter's right to possession. Therefore, it appears simply raising an objection will not be sufficient and physical steps to secure possession of the property (by way of boundaries etc.) will be necessary.

Finally, the squatter must show that the factual possession was adverse to the interests of the legal owner. In order to satisfy this element, it will usually be sufficient to show that there was no consent from the land owner (Pye as above; Smart v Lambeth LBC [2013] EWCA Civ 1375) or there is no explanation/reason why the squatter is on the land. If consent is granted for a limited period of time, then the squatter may have a claim of adverse possession once the time period of the consent expires. If, however, permission had been given to be on the land, then there cannot be a claim of adverse possession.

Intention to Possess

Having established factual possession is present, a squatter will also need to demonstrate that they had an intention to possess the land in question. An intention to possess to the exclusion of all others is not the same as an intention to own or acquire ownership. This must be an intention to possess in the squatter's own name, on their own behalf, and to the exclusion of all others (including the legal owner). This intention on the part of the squatter must be supported by clear and affirmative evidence of both the intention and that it was made clear to the world at large. The exclusion must be as far as is reasonably practicable and so far as the law will allow (see: Powell; Buckinghamshire County Council above). It is also not necessary that he intends this for all future circumstances; an intention to possess for the time being is enough.

In London Borough of Lambeth v Blackburn [2001] EWCA Civ 912, the Court of Appeal confirmed that a trespasser can have an intention to possess property despite recognising that they had no right to occupy the land. In sharp contrast, an intention to possess cannot be made out if the squatter simply believes that they had the permission of the legal owner to be in possession of the land: Clowes Developments v Walters [2005] EWHC 669 (Ch).

Analysis

• Adverse possession remains one of the most intriguing doctrines in property law — a mechanism that turns long-term occupation into legal ownership. Its rationale lies in balancing two competing interests: protecting the true owner’s rights and rewarding those who make productive use of neglected land. For legal practitioners, it serves as a reminder of the importance of vigilance in property management; for landowners, it underscores that inaction can carry serious legal consequences.

• Claims for adverse possession are rare, but they do happen. There is a need to establish that there was factual possession on the part of the squatter and that there was an intention to possess the land in question. Claims of this nature are difficult to succeed in, and any benefit of the doubt will go to the land owner. Therefore evidence is crucial. Evidence becomes even more crucial when considering that the assessment of each case will turn on its own facts.

  
  

• Adverse possession claims can arise even on small parts of land such as a driveway or a boundary. If there is any doubt, independent legal advice should be sought.

• It is important to know whether the land in question is registered or unregistered; different timeframes apply to them.

• There are a few cases where the acts taken have been so drastic that they can, on their own, suggest an intention on the part of squatter to appropriate the land concerned. They include: the ploughing up and cultivation of agricultural land (Seddon v Smith (1877) 36 LT 168 (CA)) (judgment not available online), the enclosure of land by a newly constructed fence is another, the placing of a notice on land warning intruders to keep out (coupled with the actual enforcement of such notice), and locking or blocking of the only means of access.

• Indeed, the inverse is also applicable: there are also acts which will indicate that a squatter did not have the requisite intention to possess. In Morrice v Evans [1989] Times, 27 February (judgment not available online), it was found that accepting being told not to do something by the legal owner defeated the intention requirement. Likewise, complaining about the condition of the dilapidated land to the legal owner has also defeated the intention point: Pavledes v Ryesbridge Properties Ltd (1989) 58 P & CR 459 (judgment not available online).

• The mental element of adverse possession (namely the intention) is examined from the squatter's point of view, not the legal owner's; the intentions of the legal owner are irrelevant unless there was a purpose in mind for the future use of the land and the squatter was aware of such intention.

Please note that our posts should not be intended to be legal advice and should not be construed as such; they are merely discussions and therefore readers are encouraged to seek professional legal advice for their own matters.