Adverse Possession – An Explanation of the Reality Behind ‘Squatters’ Rights’

If you are a property owner, one of the biggest worries is that squatters will move into a vacant property and take up residency. If they are not removed lawfully, then there is the possibility that they can acquire the ownership of a property or a piece of land, simply by staying there for a long time. This is known as ‘adverse possession’ or more commonly, ‘squatter’s rights’.

Adverse possession is based on the principle that if the property owner does not evict squatters from their property or land within a certain time or interrupt their use of the land then they could lose the legal ownership of that land to the squatter. However, such use or possession of the land must have taken place over many years, rather than weeks or months, so the question of adverse possession rarely becomes an issue as most squatters are legally evicted long before any rights can crystallise.

How can someone take legal ownership?

To be granted legal ownership (or title) to a piece of land or property, an application has to be made to HM Land Registry. If granted, the individual’s name will be registered as the legal owner of the land. However, to do this there must be evidence that the applicant (or a succession of previous squatters) have occupied the registered property or land continuously for 10 years. If the land is unregistered, then the minimum time period extends to 12 years of continuous occupancy.

Applicants will also need to show that they (or any previous squatters) have acted as the landowners for the whole of that time, and that no permission from the registered landowner was sought. That means you have to prove factual possession of the land, and intention to possess the land, and that the possession had been ‘adverse’. It is also imperative that applicants make no secret or otherwise seek to conceal their use and occupation of the land or property in question.

In order to ensure that you meet the above requirements, you will need the help of a legal expert who is experienced in dealing with adverse possession cases, in order to ensure that the appropriate forms and supporting evidence are submitted to HM Land Registry.

What about the actual landowner’s rights?

It appears at first glance that adverse possession allows squatters to take control of a piece of land that is already owned by someone else and, as long as they stay there for long enough, they can lay claim to it. This is an over-simplification, as there are several things landowners can do to prevent this from happening.

The most obvious is to apply for a possession order and have the squatters lawfully evicted long before the question of adverse possession arises. This can be done by way of an application for an Interim Possession Order (IPO) or issue a claim for possession on grounds of trespass. The landlord should certainly not try to evict squatters themselves using threats, force or violence. This will serve only to escalate the situation and place the landowner at risk of a claim being issued against them as well.

An IPO can be applied for within 28 days of the date on which the landowner first knew, or ought reasonably to have known, that the squatters were in occupation of the land or property.

In order to secure an IPO, the landowner will need to file a claim form and application for the IPO at the County Court and, once issued, the IPO and supporting documents will need to be served on the squatters within 48 hours. Squatters then have 24 hours to leave the property and must stay away from it for 12 months. This will effectively negate any chance of them applying for adverse possession, as it will amount to an interruption of their occupancy of the property or land.

Landlords should also be aware that it is now a criminal offence to squat in a residential building pursuant to section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 if a squatter enters a residential building as a trespass, with the knowledge that they are a trespasser and lives or otherwise intends to continue living in such building for any period.

Stopping the clock – how the legal owner can prevent adverse possession

If the legal owner of the land or property physically prevents the squatter from occupying the registered land, then they can effectively ‘stop the clock’ on the 10-year period. This could be through erecting a barrier or fence, locking and barring a building, or repossessing the property (see above). The owner can also start legal proceedings of their own as soon as they receive notification that a squatter is applying for adverse possession.

If, however, nobody objects to the application, then the registration may proceed as unchallenged. As a squatter usually does not have all the documentation in place to register an absolute title on the land, they are granted ‘possessory title’ registration (a form of temporary status) before having absolute title after a set period of time.

Adverse possession is nearly always contentious and usually challenged by the legal landowner, so cases are rarely seen all the way through to the successful obtaining of title, particularly following the creation of the criminal offence in respect of squatting in residential buildings. In the vast majority of cases, the legal landowner will apply to evict the squatters long before they have any chance of applying for adverse possession. However, if you are thinking about applying for adverse possession, or are a landowner who is dealing with squatters, then it would be prudent to seek advice from a property solicitor as soon as possible.

For more information the Thompson Smith and Puxon Dispute Resolution team can be contacted on 01206 574431 or by email at info@tsplegal.com.