Adverse Possession and Leasehold Land

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

It is a complex area of law and requires the person in occupation to have factual possession and the necessary intention to possess the land for a qualifying period.  This is 10 years in the case of registered land, and 12 years for unregistered land.  

Following the Land Registration Act 2002, which came into force on 13 October 2003 (LRA 2002), it became significantly more challenging to acquire registered land by way of adverse possession. 

Claims for adverse possession of registered leasehold land

A squatter who has adversely possessed registered land for more than 10 years (with the necessary factual and intention to possess), can apply to the Land Registry to be registered as the landowner. 

The application would only succeed if the squatter meets one of three conditions under Paragraph 5 of Schedule 6 to LRA 2002 below: - 

• It would be unfair for the registered proprietor to seek to dispossess the squatter because the owner’s words or conduct led the squatter to believe they could stay (known as estoppel).
• The squatter has some other right to be registered as the proprietor (e.g. under a Will).
• The squatter has reasonably but mistakenly treated adjoining land as their own for at least 10 years and the boundary line has not been formally determined.

It is the third condition which is most commonly relied upon in practice.

The owner of the land is then given an opportunity to respond to the application. Grounds of challenge will vary but disputes can arise over whether the squatter has established one of the above conditions.

There are different scenarios in which adverse possession of registered leasehold land can occur:

A squatter occupies land subject to a lease:

Here, the squatter is often a neighbouring landowner or occupier and their claim for adverse possession is against the tenant under the lease, as the party with the right to possession of the land.  

If the application is successful, the tenant would be dispossessed of the land subject to the application and the successful squatter would become the registered leasehold owner. 

However, the squatter would not acquire title to the freehold land until the lease has expired (and assuming the squatter remains in occupation for at least 10 years).  This is unusual in practice as landlords typically take steps to recover possession of the land upon expiry of the lease or formally agree terms of a new lease.  

A tenant occupies land owned by their landlord, but extends beyond the area demised by their lease: 

This is a particular risk for leasehold properties with areas such as lofts, roofs and gardens. This can happen for many reasons, both intentionally or by mistake, where the occupant believes in error that the area is demised to them. 

Two recent cases illustrate how the Tribunals approach these circumstances:  

• Booler v Yousaf [2025] UKUT 340 (LC) – In this case, it was held that the adjacent land leased to the applicant did not include the disputed land, which meant the adverse possession claim could proceed.  The Upper Tribunal confirmed that possession of land under a lease cannot be adverse possession because the occupier would have their landlord’s permission to occupy the land.
  
  
• McGee & McGee v Long Term Reversions (Harrogate) Limited (2023/0552) – In this case, Mr and Mrs McGee were long leaseholders of a residential flat which had access to loft space which did not form part of their demise under the lease.  Mr and Mrs McGee used the loft for storage and eventually made an application for adverse possession to add the loft space to their lease. Their application was rejected.  The Tribunal held that if a tenant occupies land beyond their lease, this amounts to an encroachment rather than adverse possession and that this is a separate doctrine to adverse possession – effectively, a form of estoppel arising from the landlord and tenant relationship.  On this basis, the tenant is prevented from claiming the landlord’s title as their own as they are deemed to possess this land as tenant of the landlord, but may instead apply to formally incorporate the additional land into their lease.

A tenant occupies land beyond its demise which is not owned by their landlord:

In this instance, the tenant’s occupation is for the benefit of their landlord.  To acquire the land by adverse possession, the landlord would need to make an application for adverse possession against the neighbouring landowner on the basis of their tenant’s occupation.

Key takeaways: 

• Those managing leasehold property, including residential, commercial or mixed-use, should review portfolios and identify areas at risk of encroachment.  Regular inspections should then be carried out to check leaseholders remain within the boundaries of their demise.
  
  
• Where it is found that a tenant has encroached land outside of their lease, legal advice should be sought immediately on how to address the issue promptly to stop the time running.
  
  
• Landlords should be vigilant to prevent encroachments by third parties by ensuring tenants comply with any lease covenants to notify of encroachments and to require tenants to take preventative measures to reduce the risk of anyone making an adverse possession claim.

For more information on the key points of adverse possession for landowners, developers and those working in strategic land, see our Expert Insights.

Please do not hesitate to contact Emma Preece, Helena Cullwick, or your usual Charles Russell Speechlys LLP contact for any further information.  

This insight is not a substitute for legal advice on the specific circumstances of your situation.