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Adverse possession and squatters - the steps you can take to protect your interests

The issue

Squatting is often in the news with high profile cases hitting the headlines such as the occupation of part of St Paul's Churchyard.

The Justice Secretary Kenneth Clarke has proposed a new law that may assist residential property owners by making squatting a criminal offence. Commercial property owners will be left with the existing civil process with the police reluctant to assist with the removal of the trespassers even after an injunction has been obtained. The chances of recovering the cost of the proceedings, the bailiffs and damage to the property are very slim.

Squatting or obtaining land by adverse possession often occurs, however, in much less contentious circumstances. Unless vigilant, landowners may find land is lost to adjoining owners encroaching onto property sometimes in the mistaken belief that it belongs to them and other times simply because the land appears available and unused.

"Squatters' rights"

Squatters have no rights as such but may apply to acquire title to property as against the paper title owner if they remain in occupation for the requisite period of time. Essentially a squatter must be able to prove:

Factual possession – that they have been in occupation of the land with an appropriate degree of physical control.

Intention to possess – this is a low threshold with the squatter needing to show only an intention to possess (not own) to the exclusion of all others.

Unregistered and registered land

There are two different systems for acquiring adverse possession depending on whether the land over which title is sought by the squatter is registered or not.

After twelve years of adverse possession, the Limitation Act 1980 prevents the legal owner from bringing a claim for possession and the owner of the property must cede title to the squatter; this used to apply to both unregistered and registered titles.

When the Land Registration Act 2002 was enacted the Law Commission saw this as an opportunity to give registered estate owners better protection; the limitation period was designed to deal with disputes where ownership was not clear and the person in possession had a strong claim. Where title is registered no investigation of ownership is required – it is clear from the register.

A squatter can apply to HM Land Registry to be registered as proprietor after only 10 years' adverse possession but now under the new rules the registered proprietor will receive notification of the application and be given the opportunity to object and/or require the matter to be determined under a narrower set of rules set out in Schedule 6 to the Act.

What you can do

Regular inspection of vacant property is essential; in very vulnerable areas additional security may be necessary. Care should be taken to secure fencing and access to the property. If squatting is suspected swift action is essential as it may prevent a squatter from being in occupation the requisite period of time to make the application to acquire title.

If title to the property is not registered, voluntary registration could be considered – the Land Registry offers a discount on the usual fees for registration.

If title to the property is registered make sure that your address for title is up to date and if you should receive notification from the Land Registry of an application for adverse possession take legal advice swiftly. A response to the Land Registry must be made within 65 working days.

If you are successful in defeating a claim in respect of a registered title it is essential to follow this up with possession proceedings straight away. If those proceedings are not taken then the squatter can apply again after two years and will be registered as owner without further enquiry of the registered proprietor.

Taking adverse possession of land or buildings is not always about the potentially criminal behaviour of squatters. Boundary disputes are often closely linked to adverse possession. If you are not clear as to the extent of your boundary or if you are concerned about changes to your boundary features, for example, you can apply to the Land Registry for determination of the boundary or enter into a boundary agreement with your neighbour to avoid disputes in the future.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2012. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

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