Adverse Possession of Land: Key Points for Landowners, Developers and those working in Strategic Land

What is adverse possession?

Adverse possession is a method of acquiring legal title to land by occupying it without permission of the legal owner.

In addition to covering a scenario where an occupier seeks to register themselves as the owner of land not conveyed to them, it is a common application made by landowners looking to ‘tidy up’ their boundaries where legal title does not match up with the land occupied on the ground. This is particularly common with rural properties subject to historic conveyances where the plan attached to a conveyance was not entirely clear.  However, adverse possession is also relevant when a landowner, for example, builds a physical boundary which extends into their neighbour’s property.  If that boundary remains in place for many years, the party who erected the boundary may be able to extend their title to include the additional land now enclosed, thus depriving their neighbour of land which they may have purchased.

The exact criteria that must be fulfilled in order to succeed in such an application is set out below:

Key legal requirements

HM Land Registry rules confirm the following criteria must be fulfilled in order to make an application. 

1. Length of occupation - the applicant must be in occupation of the land for at least 10 years in the case of registered land, or 12 years  for unregistered land. Whether land is registered or unregistered is determined by checking records held at HM Land Registry.
2. Factual and exclusive possession - the applicant must have an appropriate degree of exclusive physical control of the land. Case law has confirmed that the applicant may be expected to demonstrate a reasonable belief that they own the land (Rowlands v Bishop [2023]). This requirement can be met by evidence of acts of maintenance on the land and showing that the land is physically enclosed.
3. Intention to possess the land without the landowner’s consent - for possession to be truly ‘adverse’, it must be without the true legal owner’s consent.  It is not possible to be in adverse possession if consent to occupy the land (such as by way of a licence or tenancy, orally or in writing), has been granted by the landowner (Healey v Fraine [2023]).

Development and agricultural considerations

• Those working in the development context should be aware that it is not possible to claim adverse possession of a highway which is publicly maintainable. It is impossible for an occupier to claim they have exclusive use of the land, due to the rights of the highway authority.  Title to the land can only be acquired if the land ceases to be a public highway. However, where a highway is not publicly maintainable it does not vest in the highway authority, and it may be possible to acquire title by adverse possession.  It is possible to find out if land forms part of a highway by obtaining a highways search from the relevant local authority.
• Subject to the above, broadly speaking, possession of the surface land is also possession of air space above and the soil and minerals below. However, it is possible to take possession of only the surface or only a slice or stratum of land. Advice should be obtained.
• It has been confirmed that acts of maintenance over agricultural land – such as planting produce and ploughing, cutting land for hay and silage, grazing stock etc. –  is sufficient evidence to meet the factual and exclusive possession criteria. However, such land is often farmed by a tenant under an agricultural tenancy, rather than the freehold legal owner. In the event the agricultural tenant carries out acts of maintenance on land beyond that demised to him under a tenancy, it is the freehold legal owner who can rely on the tenant’s acts of maintenance to acquire title to the additional land (assuming it isn’t part of the freeholder’s title).  

Additonal protection for registered landowners

The Land Registration Act 2002 provides further protection to landowners.  Landowners will be notified when an application for adverse possession of their land has been made and given the opportunity to serve a counter-notice in response to it.  Assuming the counter-notice opposes the application, the application will only proceed if the applicant is able to rely on one of three conditions:

1. Estoppel – the applicant would need to show that it would be “unconscionable” for the registered owner to dispossess them. For example, the registered owner encouraged or allowed the applicant to believe they owned the land.
2. Some other right to the land - the applicant can show they are entitled to be registered as the owner of land for some other reason (under a Will, for example).
3. Reasonable mistake as to the boundary - the applicant reasonably believed they owned the subject land, and owns land adjacent to it. This is the most common condition relied upon.  

Interaction between adverse possession and boundaries

Adverse possession is just one type of application which can be made to ‘tidy up’ a boundary anomaly, but it may not always be appropriate.  A more appropriate application may be for the boundary to be determined or for a boundary agreement to be entered into with a neighbour, depending on the size of the land, whether it falls within the registered title or not, and whether there is a dispute as to ownership.  

Title plans of all registered titles show the general position under Section 60(1) of the Land Registration Act 2002.  In order to plot the exact line of the boundary on the ground, a specialist boundary surveyor should be instructed.

Legal presumptions exist in relation to the ownership of particular boundaries such as hedges and ditches, roadways, and riverbeds. However, these are all presumptions which can be rebutted by contrary evidence.

Practical points for landowners

• If a landowner discovers that someone has encroached on their land without permission, this amounts to a legal trespass.  The landowner can either take steps to remove them or formalise their occupation by giving permission (which means their occupation can no longer be ‘adverse’).  Injunction proceedings may be required in the most severe cases of trespass. 
• Landowners, especially those who own large parcels of land that are not always monitored or maintained, should inspect their sites regularly to ensure the boundaries are where they should be and there are no encroachments by neighbours. Records of inspections should be kept as these can prove to be useful evidence in the event of a dispute.
• Landowners should ensure their addresses are kept up to date at HM Land Registry.  The Land Registry will notify landowners if their land is subject to a claim for adverse possession in writing and give the owner a short period of time to respond.  Failure to respond in time may result in the occupier’s application being successful.  Legal advice should be obtained in order to respond to an application, with registered landowners making use of the counter-notice provisions, if possible. 
• In addition, landowners can register a property alert against the land and/or adjoining land via HM Land Registry. This way, when a party registers some form of notice against that land, landowners will be notified automatically via email, and thus given the opportunity to take action in response.

Please do not hesitate to contact Emma Preece, Helena Cullwick, or your usual Charles Russell Speechlys contact for any further information. This insight is not a substitute for legal advice on the specific circumstances of your situation.