Resolving Adverse Possession Claims in Cornwall and Devon

What has to be shown

Whether the land is registered or not, the person claiming it — the law calls them the squatter, however respectable they may be — must prove three things for the whole of the required period.

• Factual possession. Physical control of the land, dealing with it as an owner would and to the exclusion of others. Fencing or otherwise enclosing the land is the clearest evidence. Occasional use, such as cutting the grass, walking across it or storing a few things on it, is usually not enough on its own.
• An intention to possess. Not necessarily an intention to own the land, or knowledge that it belongs to someone else, but an intention to possess it, to the exclusion of everyone else, including the owner.
• No permission. Occupation with the owner’s consent, whether under a licence, a tenancy or an informal arrangement, is not adverse, and time does not run while it lasts.

What counts as possession depends on the land. A paddock fenced and grazed is different from a garden extended over a boundary, and a strip of rough ground on the far side of a Cornish hedge is different again. The evidence, usually photographs, aerial images and the recollections of people who know the land, has to cover the whole period.

Unregistered land: twelve years

Where land has never been registered, the older rules still apply. Once the squatter has been in adverse possession for twelve years, the owner’s right to recover the land is barred and their title to it is extinguished. The squatter can then apply to HM Land Registry for first registration, supported by evidence of their possession.

A significant amount of land in Cornwall and Devon has never been registered. Owners of unregistered land can reduce the risk by applying for voluntary first registration.

Registered land: ten years and three conditions

Since 13 October 2003 the rules for registered land have been much stricter. After ten years’ adverse possession, a squatter can apply to HM Land Registry to be registered as owner. The registered owner is notified and, if they respond in time requiring the application to be dealt with under the statutory conditions, the squatter will succeed only if one of three conditions applies:

1. Estoppel. Because of the owner’s own conduct, it would be unconscionable for the owner to seek to dispossess the squatter, and the squatter ought to be registered. An example is where the owner encouraged the squatter to build on the land in the belief that it was theirs.
2. Some other right to the land. For example, where the squatter paid for the land under a contract but the transfer was never completed.
3. The boundary condition. The land adjoins the squatter’s own, the exact line of the boundary has not been determined, and for at least ten years the squatter reasonably believed that the land belonged to them. This is the condition that arises most often in boundary disputes.

If none of the conditions applies, the application is rejected. An owner who objects and then does nothing is not safe for ever, however. If the squatter remains in adverse possession for a further two years, they can apply again and will then be entitled to be registered. An objection therefore needs to be followed through, by recovering the land or by bringing proceedings for possession.

Where twelve years’ adverse possession of registered land was completed before 13 October 2003, the squatter’s rights under the old law can be preserved.

If you receive a notice from the Land Registry

A notice of an application for adverse possession gives the registered owner a deadline to respond, ordinarily 65 business days. If no response is made in time, the squatter will usually be registered as owner, however weak their claim. Any notice should be taken to a solicitor straight away.

A response can do more than one thing. It can object that the squatter has not in fact been in adverse possession for the full ten years, and it can require the application to be dealt with under the three conditions. If an objection is disputed and cannot be resolved by agreement, the Land Registry refers the matter to the First-tier Tribunal (Property Chamber).

Protecting your land

• Check your title plan against what is on the ground, and note where fences and hedges actually run
• If a neighbour is using part of your land, give them written permission: use with permission is not adverse
• Deal with encroachment early, by asking for the land back or re-fencing, before the years add up
• Register unregistered land
• Respond to any Land Registry notice within the deadline

Making a claim

If you have used and enclosed land for many years as your own, you may be able to apply to be registered as its owner. Evidence decides these applications: statements from you and from others who know the land, dated photographs, aerial images, and anything showing when fences were put up or the land was taken in. The Land Registry requires a detailed statement of the facts and a plan identifying the land precisely.

Before applying, it is worth considering how the owner is likely to respond, and whether an agreement, such as a transfer of the land or a boundary agreement, would achieve the same result at less cost.

How Laurence can help

• Assessing whether a claim is likely to succeed, or how strong a claim against you is
• Investigating the title, including old unregistered deeds and plans
• Gathering witness, photographic and aerial evidence
• Making applications to HM Land Registry, and responding to notices and objections
• Negotiating a transfer or boundary agreement where that is the better outcome
• Representing you at mediation, in the First-tier Tribunal and in the County Court