Claim unregistered land – How to do you it? Claiming unregistered land is a difficult task.

This guide explains the correct and legal approach to applications involving adverse possession and claiming unregistered land and procedures for making such applications through Her Majesties Land Registry.

Claim unregistered land

Under the law as it existed prior to the LRA (Land Registration Act ) 2002, a person who had no documentary title could in certain circumstances acquire title to land, registered or unregistered, by adverse possession for a minimum period of twelve years under the Limitation Act 1980. However, the doctrine of adverse possession did not easily with the fundamental concept of indefeasibility of title which underlies the system of land registration. It is registration, not possession, that vests the legal estate in the owner and that person’s ownership is apparent from the register. The LRA2002 has, therefore, reformed the law and relevant procedure and created a new regime which applies only to registered land. This is guide can be obtained from the Land Registry web page and is detailed in Practice Guide 4 Adverse possession of registered land under the new provisions of the Land Registration Act 2002.

Unregistered Land - Ownership Search

Claim unregistered land

The law remains largely unchanged for adverse possession of unregistered land and this is covered in this guide.

Adverse possession – the essentials

An application for adverse possession will not proceed unless Land Registry believes it to be more likely than not, from the evidence they have seen that:

- The squatter has factual possession of the land;

- The squatter has the necessary intention to possess the land;

- The squatter’s possession is without the owner’s consent;

And all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application (see “The limitation period”).

The intention to possess

What is required is “not an intention to own or even an intention to acquire ownership but an intention to possess” 2. This means “the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow”

Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the acts making up that factual possession. But this deduction will not always be made, as Slade J explained in Powell v McFarlane

“In my judgement it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.”

Use of land for access purposes is an example of an equivocal act. Such use over time might give rise to an easement by prescription, but is not, by itself, sufficient to establish an intention to claim unregistered land.

The limitation period

A squatter can acquire ownership through a combination of the positive effect of the adverse possession giving him title and the negative effect of the LA (Limitation Act) 1980.

The LA 1980 extinguishes the paper title at the end of the appropriate limitation period.

Extended periods

The time limit of 12 years is extended to 30 years for the Crown. This then is the relevant limitation period when the owner is a company that has been dissolved: the property of such a company vests in the Crown or one of the Royal Duchies as bona vacantia. You should, therefore, carry out a company search where the owner is a company the limitation period is 30 years for any spiritual corporation sole (bishops, vicars and certain other holders in the Church of England). The 12 year period applies, however, to corporations aggregate, such as the Church Commissioners or one of the Oxford or Cambridge Colleges. Where the land is foreshore owned by the Crown, the period is 60 years. The normal 12 year period applies to foreshore owned by parties other than the Crown.

What stops time running? – Claim unregistered land

For the purposes of the LA 1980, a period of adverse possession can be brought to an end by a signed, written acknowledgement of the owner’s title by the squatter6 and a written acknowledgement by the agent of the squatter is as effective as one signed personally by the squatter. A written offer by the squatter to purchase the land from the owner is treated as an acknowledgement.

If the squatter remains in possession after the acknowledgement then time may start running again. But it will not start running if the acknowledgement results in a change in the relationship between the squatter and the owner (for example, the grant of a lease or a licence) so that the possession is no longer adverse. Once the limitation period has expired, any subsequent acknowledgement does not revive the owner’s right of action. A demand for possession from the owner does not stop time running. Nor does the mere issuing of proceedings which are later dismissed, or the making of related applications or objections to Land Registry. Which means that it is not enough for someone to say they oppose the adverse possession, they must prove it in a court of law before the time is stopped.

Making an application for registration on the basis of adverse possession

- The application

You must make the application on the Land Registry form FR1 which is supplied with this pack or can be obtained by going to your nearest Land Registry once. Please note the need to attach to the FR1 a plan showing the land if the verbal description in panel 2 of the FR1 is not sufficient to identify the location and extent of the land on the Ordnance Survey map. It is rare for a plan not to be necessary in an adverse possession application.

- The supporting evidence

The evidence will usually consist of one or more statutory declarations. They should be factual and, ideally, will be in the declarant’s own words rather than in language copied from precedent books. The declarants should expressly state their means of knowing the facts, if not implicit in the declarations.

Information from third parties who have observed the position on the ground but may have no knowledge of the squatter’s intentions or dealings with the owner will usually carry less weight than the squatter’s own declaration. However, statutory declarations from neighbours and other third parties, sent in with the squatter’s statutory declaration, may be useful as corroborative evidence.

The statutory declarations should cover all matters of relevance and, in particular, the following:

• The circumstances in which the adverse possession started, giving the date with as much precision as possible.

• The purpose for which the land has been and is being used and the activities carried on there. Statements that the declarant has been “in occupation and/or in receipt of the rents and profits of the land” and the like are of little, if any value.

• The extent to which the land is enclosed by fences, their nature, who erected them and when, and by whom they have been maintained. If there is a gate, whether there is a lock for it and, if so, who has the keys?

• The name and address of the owner or the person thought to be the owner.

• If the squatter owns adjoining registered land, the title number in respect of that land. You should enclose any pre-registration deeds or documents with the application. If the squatter owns adjoining unregistered land, you need to send in the title deeds and documents, possibly in the form of an examined epitome.

• Confirmation that the squatter’s occupation has not been under a lease, tenancy or licence, or with the consent of any person.

• Any acknowledgement of the owner’s title, with dates.

• Full particulars of any disputes concerning the squatter’s possession, with copies of all available correspondence or other documents relating to the dispute.

- Objections and disputes

Disputes involving adverse possession of unregistered land tend to arise in one of two ways:

•The squatter makes an application for first registration, Land Registry serve notice on the owner (if known) or the owner otherwise learns of the application, and the owner objects; or

• The squatter lodges a caution against first registration, the owner then applies for first registration and the squatter objects.

Any person wishing to object to an application must deliver to the registrar a written statement signed by him or his conveyancer. It must state that the objector objects to the application state the grounds for the objection and give the objector’s name and address to which communications may be sent.

If an objection is received, then the application cannot be determined until the objection is disposed of, unless the registrar is satisfied that the objection is groundless.

A squatter needs to take account of these points before making an application for first registration based on adverse possession. Even if the application does not lead to court proceedings or a hearing:

• Land Registry will serve notice on the owner (if known), who will thus be alerted (perhaps for the first time) to what is happening on his land; and

• In limited circumstances the squatter may have to pay the costs incurred by the owner as a result of the squatter’s application

To claim unregistered land is a complicated matter. We hope we have helped you to claim unregistered land