Assistant Land Registrars Chris Day and Charlotte Takeuchi provide a guide to adverse possession of registered land under the Land Registration Act 2002

Shadows encroach on a field.

Background

The “doctrine of adverse possession”, as it is described in the Law Commission report 271 Land Registration for the Twenty-First Century (‘Law Com 271’), allows the acquisition of a title to land owned by someone else, by continually possessing and using the land for a set period of time without the permission of the owner.

One of the grounds for the doctrine set out in Law Com 271 is that “land is a precious resource and should be kept in use”, but Law Com 271 also recognised that in the doctrine of adverse possession “the balance between landowner and squatter needs to be adjusted to overcome some of the deficiencies…while maintaining the advantages”.

Law Com 271 set out the terms of, and a commentary on, a Land Registration Bill that would become the Land Registration Act 2002 (‘LRA 2002’).

Prior to the coming into force of the LRA 2002 on 13 October 2003, adverse possession claims in relation to both registered and unregistered land were subject to the Limitation Act 1980 (‘LA 1980’) and the acts required to support a claim of adverse possession were explained by reference to case law; thus in order to establish a claim to have acquired a title by way of adverse possession, the applicant or ‘squatter’ must have demonstrated:

a)         factual possession of the land without the owner’s consent, and
b)         sufficient intention to possess the land such as by acts of use/maintenance, and
c)         all the above for a continuous 12-year period (longer in relation to certain types of land/owners of land).

All the above criteria continue to apply in certain circumstances, for example where the land concerned is unregistered or as mentioned in Additional options below.

The purpose of this article, however, is solely to deal with the new adverse possession of registered land ADV1 regime introduced by the LRA 2002. Please refer to Practice Guide 5 for further information on the practice and procedures of Land Registry in relation to applications for title based on adverse possession of unregistered land or under Additional options.

LRA 2002 – The ADV1 procedure

Section 96 of the LRA 2002 disapplied sections 15, 16 and 17 of the LA 1980 and introduced an entirely new system of applications for adverse possession of registered land. The new system required the acts (factual possession and an intention to possess) of adverse possession (still explained by reference to case law) to have been carried out for a period of at least 10 years (longer in relation to certain types of land, such as Crown foreshore) to entitle the applicant to apply to be registered as proprietor of the registered estate in place of the current proprietor.

The relevant application form is ADV1. The form must be accompanied by a statutory declaration or statement of truth made by the applicant not more than one month before the application is lodged, together with any other relevant supporting evidence to substantiate the claim of adverse possession. A form ST1 may be completed for the statement of truth and is a useful guide as to the information needed, for example by rule 188 Land Registration Rules 2003 (‘LRR 2003’) and rule 215A LRR 2003.

In the case of a first application, an applicant must show that they (and any relevant predecessors in title) have been in adverse possession for at least 10 years ending on the date of the application.

The applicant does not have to be in adverse possession personally for the entire requisite period provided they are a successor in title to a previous applicant. For example, if A is in adverse possession for five years, then transfers their interest to B who continues in adverse possession for a further five years so the 10-year period is continuous, B is entitled to apply using a statement of truth from A and B for the total period. However if B evicted A, then B would not be entitled to apply at the end of their five years. An application made on this basis should confirm how title has passed between the applicants, and preferably include any documents purporting to transfer the interest.

If the applicant has been in possession for 10 years but is then evicted, then provided the eviction was not pursuant to a court order for possession, it still may be possible for the applicant to make an application. Any such application must be made within six months of the eviction and at the date of the eviction the applicant must otherwise have been entitled to apply to be registered.

Even where an applicant has been in adverse possession for a 10-year period and otherwise fulfils the criteria, the LRA 2002 prescribes four circumstances where no application may be made. These are as follows.

  • Where the applicant is a defendant in proceedings involving possession of the land (that is, the applicant can’t make an application for adverse possession where they are defending eviction proceedings).
  • Where a judgment for possession has actually been given against the applicant in the last two years.
  • During any period where the registered proprietor is an enemy under the Limitation (Enemies and War Prisoners) Act 1945 or is detained within enemy territory (or 12 months following the end of such period).
  • Where the registered proprietor has a mental or physical impairment which adversely affects their decision-making or communication ability.

It is important when completing their application that the applicant considers what their position will be if the registered proprietor serves a counter notice to the application requiring the Land Registrar (‘the registrar’) to deal with the application under paragraph 5 of Schedule 6 to the LRA 2002 (‘para 5’). If a counter notice is served then the applicant is entitled to be registered only if any of the three conditions set out in para 5 are met (we consider these conditions further below). The applicant needs to identify if they wish to rely on one or more of the conditions in the ADV1 and ensure the statutory declaration or ST1 sets out the relevant facts in support of this.

If, upon receipt of a valid application, the registrar decides from the evidence supplied that it is more likely than not the applicant is entitled to apply for title based on claimed adverse possession, then notice(s) will be served. As part of this decision-making process, the registrar may commission an inspection report from an Ordnance Survey surveyor to provide further information.

Paragraph 2 of Schedule 6 to the LRA 2002 (‘para 2’) specifies certain parties that notice of an ADV1 application must be served upon. These parties will have the opportunity to object and/or serve counter-notice within a 65-business day notice period. If no objection is received and no counter notice is served, the applicant will be registered in place of the registered proprietor.

Land Registry may also, at its discretion, serve notice of an ADV1 application on additional parties not specified in para 2. However these parties will have the opportunity only to object to an application, and must do so within a 15-business day notice period.

In the event the registrar is required to deal with the application pursuant to the provisions of para 5 then in order for the application to proceed the applicant will need to demonstrate an arguable case that at least one of the three conditions set out in para 5 has been met.

The first condition – Proprietary estoppel (para 5(2))

This condition is based on the principles of proprietary estoppel. The applicant must show it would be unconscionable, because of an equity by estoppel, for the registered proprietor to attempt to dispossess the applicant and the applicant ought to be registered as proprietor.

The applicant will need to evidence the claim that the proprietor’s actions incited or encouraged the applicant to believe they owned the land, that the applicant acted to their detriment to the knowledge of the proprietor and that as a result it would be unconscionable for the proprietor to deny the applicant their rights. Law Commission 271 sets out two examples of where this condition may be applicable.

  1. Where the applicant has built on the registered proprietor’s land in the mistaken belief they were the owner of it, and the proprietor has knowingly acquiesced in their mistake. The applicant eventually discovers the true facts and applies to be registered after 10 years.
  1. Where neighbours have entered into an informal sale agreement for valuable consideration by which one agrees to sell the land to the other. The ‘buyer’ pays the price, takes possession of the land and treats it as their own. No steps are taken to perfect their title and there was no contract. If the applicant has been in possession of it for 10 years they can apply to be registered as proprietor.
The second condition – Squatter has some other right to the land (para 5(3))

The examples given in Law Com 271 are that the applicant is entitled under the will or intestacy of the deceased proprietor or that the applicant contracted to buy the land and paid the purchase price, but the legal estate was never transferred to him. The applicant is a beneficiary under a bare trust and so can still be in adverse possession.

The third condition – Mistaken belief as to boundary (para 5(4))

This ground may be relied upon where the applicant has been in adverse possession of land abutting their own under the mistaken but reasonable belief they owned it. There must have been no determination of the relevant boundary pursuant to section 60 of the LRA 2002 and the land the subject of the application must have been registered for at least one year prior to the date of the application.

Response to notice

When serving notice of an ADV1 application on any of the parties set out in para 2, Land Registry will include a form NAP for recipients to use when responding to us. A recipient of a notice has the following options.

  1. Consent to the application
  2. Not respond to the notice
  3. Object to the application
  4. Serve counter-notice

Not responding to a notice will be treated the same as if the recipient had consented to the application and a recipient may both object and serve counter-notice should they wish.

Consent given/no response

Land Registry will proceed with the application, registering the applicant as the proprietor of the land in place of the current registered proprietor.

Objection made

S.73 of the LRA 2002 gives anyone the right to object to an application; so anybody, whether the recipient of notice or not, may object to an ADV1 application. However only a party specified in para 2 can serve counter-notice. All objections must comply with the requirements of rules 19 and 198, Land Registration Rules 2003, before they can be considered.

Objections will usually challenge the applicant’s claimed acts of adverse possession of the land, or the period of time over which they have been carried out. However all objections are considered on their individual merits when received. If an objection is considered ‘groundless’ then it will not affect the application. However if it is considered ‘non-groundless’ then notice of the objection will be served on the applicant and our dispute process will commence. If no agreement is reached between the applicant and objector, then disputed applications will be referred to the Land Registration division of the Property Chamber, First-tier Tribunal for judicial resolution.

For more information regarding our disputes procedure and potential costs consequences, please see Practice Guide 37 and Practice Guide 38.

Counter-notice served

If just a counter-notice is served, the registrar will then consider whether the applicant is relying on any of the three conditions set out in para 5.

If the applicant is not claiming in their application to rely on any of the three conditions, the application will be rejected. If the applicant is relying on one of the three conditions in their application then the registrar will consider whether or not the evidence submitted shows an arguable case for the relevant condition(s) being met. If the registrar is satisfied an arguable case has been made out, we will contact the party who served the counter-notice. They will then be given the opportunity to object to the application on this ground. If the objection is ‘non-groundless’ and no agreement is reached between the parties, the matter will be referred to the tribunal.

If no counter-notice is served the para 5 conditions would not form part of Land Registry’s reasoning when deciding whether an applicant is in adverse possession of the land.

Where an application is rejected, the applicant will be able to reapply to be registered as proprietor two years after the date of rejection under paragraph 6 of Schedule 6 LRA 2002, provided they have remained in adverse possession of the land. 

If both a counter-notice and objection is received in response to the initial notice served by the registrar, the objection will be dealt with first (as referred to above) unless it is withdrawn.

Unusual applications
Trust issues

A person is not to be regarded as being in adverse possession of an estate when the estate is subject to a trust, unless the interest of each of the beneficiaries in the estate is an interest in possession. For example, where land is held by the registered proprietor, P, on trust for B for life, adverse possession cannot begin until B became entitled in possession. This provision is designed to protect the interests of beneficiaries not in possession.

Applications for adverse possession of registered leasehold land

When an applicant take possession of land subject to a lease then the time period required is deemed to run against the tenant but not the landlord. Time does not begin running against the landlord until the expiry of the lease, unless the applicant went into possession before the lease was created.

The applicant’s position is also confused by the possibility that the tenant can apply to surrender their lease at any point. On the face of it, once the leasehold title is surrendered any time in adverse possession built up by the applicant is also extinguished. However, it has been suggested that the decision in Central London Commercial Estates Ltd v Kato Kagaku [1984] 4 All ER 948 (decided under the Land Registration Act 1925) allows an applicant to apply to alter the register by reopening the closed leasehold title and making an ADV1 application against this reopened title. The applicant’s right to make an application under paragraph 1 of Schedule 6 LRA 2002 would need to have arisen before the leasehold title was surrendered.

Encroachment onto registered land from leasehold land

A specific issue arises where an application is made, by either the landlord or tenant of a property, to be registered as proprietor of adjoining freehold registered land by way of adverse possession. This issue centres round the presumption, explained in the case of Smirk v Lyndale Developments Ltd [1975] 1 Ch 317, that a tenant who encroaches onto land does so for the benefit of their landlord as an accretion to the lease (‘the presumption’). An application by a landlord in relation to encroachment on the part of their tenant falls within the presumption and so the application can proceed (assuming the tenant’s acts of user are satisfactory).

There is some debate as to whether the presumption applies to such an application lodged by a tenant (see section 11.2 of Practice Guide 4). One view is that the tenant would be required to rebut the presumption. However there is a competing view that the presumption is concerned only with who might have acquired title at common law to the estate and does not alter the fact that the tenant is in adverse possession, rendering it irrelevant where the application is made under Schedule 6, LRA 2002. It is likely that the mere act of submitting the application in their own name will be sufficient evidence the tenant intended their encroachment to be for their own benefit, and so the above distinction is largely academic.

Due to the likelihood that both landlord and tenant may have an arguable claim to the adversely possessed land, notice of an application will be served on the other. Notice will also be served on the registered proprietor of the land, which may also be the landlord.

Additional options

Aside from the ADV1 procedure set out in this article, applications for adverse possession in relation to registered land may also be made under the following circumstances.

  1. Under the transitional provisions set out in paragraph 18 of Schedule 12 to the LRA 2002. Where an applicant can demonstrate that the land was registered as at 13 October 2003 and there had been adverse possession for the appropriate limitation period by that date then the registered proprietor would be deemed to hold the land on trust for the applicant, who would be entitled to be registered as the new owner.
  1. Where an applicant can demonstrate the documentary title to registered land was already defeated by adverse possession before first registration, it is possible to apply to alter that registration on the grounds of error to de-register the land concerned. This is a two-stage process as if the alteration is successful then a fresh application for first registration of the applicant’s claimed adverse possession title is also needed.

Where an applicant’s adverse possession is such that they may apply either under the ADV1 procedure or the transitional provisions, both applications may be lodged at the same time, but one will be held in reserve until the other is either completed, cancelled or rejected. The applicant must decide which application is to be processed first.

The ADV1 procedure and transitional provisions differ in when title is deemed to have passed to the applicant.

Under the transitional provisions, as with unregistered land, the paper title is deemed to have been extinguished as soon as the applicant has been in adverse possession for 12 years. However, under the ADV1 procedure the applicant’s 10 years of adverse possession does not automatically extinguish the paper title. Instead it merely allows the applicant to apply to be registered, but this application can still be defeated if counter-notice is served and the applicant cannot satisfy any of the conditions set out in para 5. Therefore title under the ADV1 procedure does not appear to pass to the applicant until the application is completed by registration.

Key points

1. When preparing an application, it is important care is taken when deciding which of the para 5 conditions are to be relied on. The supporting statement of truth or statutory declaration should include information regarding the applicant’s reliance on the chosen paragraph(s). An applicant may rely upon more than one of the para 5 conditions in making their application.

If an applicant does not rely upon any of the para 5 conditions, or does not satisfy the condition(s) they have relied upon, then the application will fail should the recipient of notice serve counter-notice. If no counter-notice is served, then the reliance or not on para 5 conditions becomes irrelevant.

2. It is important to note that the basic principles of adverse possession, that the applicant must demonstrate factual possession and an intention to possess the land without the true owner’s consent for a period of years, remain unchanged by the LRA 2002.

3. It can be seen from the above that the effect of not receiving a notice and therefore not being in a position to serve a counter-notice or lodge an objection is far-reaching. It is clearly critical that registered proprietors keep their address for service up to date with Land Registry.

This article does not replace the need to consider Practice Guide 4 before making any ADV1 application.


Chris Day and Charlotte Takeuchi
By Chris Day and Charlotte Takeuchi,
Assistant Land Registrars at Land Registry