I am frequently asked questions about land which has no apparent current “use”. Taking ownership of it can be possible, so long as certain criteria are met. Namely, you would need to be using this land “as of right”, without:
- Force;
- Secrecy; or
- Permission.
These are the same criteria which are applied for the grant of a prescriptive easement, such as some rights of way over land. However, a prescriptive easement does not allow you to repurpose the land in question; merely access across it.
To attempt to take ownership of the land, you must also exclude all others from accessing it. This would mean securely fencing it off and keeping everybody else out.
- For at least 10 years.
- Possibly 12.
- Uninterrupted.
The difference in timing is because the process differs depending on whether the land is registered or not.
Where land is registered, there will of course be a note of the proprietor at the Land Registry. If you lodge an application for adverse possession for registered land, the Land Registry will serve a notice on the registered proprietor, requesting its permission to transfer the land to you.
Assuming the registered proprietor has kept his details up to date, you should assume the response is likely to be “no”, whereupon he will remove you from his land.
However, there are plenty of situations where land has simply been “forgotten” by its registered owner, or more usually the original owner’s heirs. In cases where historic contact details are held, it is quite possible that no response will be received to the Land Registry’s notice, and the land may* be transferred to you.
If the land is unregistered, you will need to hold it for 12 years before making an application to the Land Registry. In this instance, they will have no record of an owner, but still may serve notices on owners of surrounding land, to ensure it does not belong to them. Again, if no response is received to these notices, you may* be registered as its first proprietor.
The adverse possession regime is often referred to as a “Squatter’s Charter”, and it is easy to see why.
*There are other various factors to bear in mind here, such as:
- You could be accused of a criminal act by attempting to assert control over land belonging to another;
- Land belonging to the Crown or certain spiritual corporations takes far longer to pass to the squatter. Crown land on the foreshore takes 60 years;
- The application will fail in certain situations, including when:
- the registered proprietor is unable to make decisions due to mental disability or physical impairment;
- the squatter has defended proceedings involving possession of land during the last 2 years; or
- the estate was held in trust during any of the previous 10 years.
The best way to protect yourself against losing your own land via adverse possession is to ensure it is registered at the Land Registry and your details are kept up to date at all times!
We can of course assist if you want to apply for the registration of your land, or check that your details are currently up to date at the Land Registry.
Please contact our Property Litigation team on 0345 646 0406 or fill in our online enquiry form if you have squatters on your land and do not be tempted to remove them yourself.