Adverse possession: A possession of strength

Any plot of land that is not in regular use by its owner can be a potential target for trespassers.

“Trespass” is a broad category. Recently, cases of individuals looking for a roof over their heads have been in the news following the criminalisation of squatting in residential properties. However, the laws concerning trespass go much further and wider than this, and encompass situations such as neighbours annexing chunks of garden, and even opportunists taking over large development sites.

If no action is taken over the following years, and the trespasser remains in occupation, then in some circumstances, they may become the legal owner.

This is particularly important for developers and builders, who may have been sitting on a prime site awaiting the right opportunity, or who might have acquired such land - only to find that someone else now claims to own it.

The technical term for trespassers acquiring someone else’s land is “adverse possession”. This means that someone is occupying land that belongs to someone else, without the owner’s consent. The occupier needs to prove:

• actual uninterrupted possession of the land for the relevant period
• genuine intention to possess the land throughout this period.

The occupier must have had factual possession of the land throughout the relevant period. Occupation by previous trespassers can be included in the time calculation. This relevant period will be:

• 10 years for registered land
• 12 years for unregistered land
• 12 years if the land is registered, but the trespasser had already accrued 12 years of occupation prior to 13 October 2003.

The occupier must also prove that they intended to possess the land to the exclusion of all others, including the legal owner.

Evidence the occupier might have to demonstrate this intention could include: how they came to occupy the land; the purpose to which they have put the land; and the extent to which the land has been secured against the world.

At worst, the developer could find they have paid a large sum of money for a plot of land that they do not own

Essentially, the trespasser must have exclusive physical control of the land. Whether their occupation qualifies will depend upon the circumstances and the nature of the property. For example, the courts have found that keeping animals or mooring boats is sufficient evidence of intention, but parking cars is not.

In the case of registered land, the occupier will have to make an application to the Land Registry to be registered as the new owner. This procedure is more difficult because the owner can object and may well succeed.

For unregistered and registered land where the trespasser has already been in occupation for more than 12 years prior to 13 October 2003, the occupier simply has to prove that they have been in occupation with a genuine intention to possess the land.

So, what does this mean? At best, development could be significantly delayed while a trespasser’s claim is disputed. At worst, the developer could find they have paid a large sum of money for a plot of land that they do not own.

Although it may seem perverse that the law can advocate allowing a party to lose their land in this way, the law does not distinguish between innocence and opportunism. It simply operates to apply certainty of title for the benefit of innocent third parties.

In this situation, therefore, prevention is considerably better than cure and it is critical that developers protect themselves. Where land is already owned and awaiting development, care should be taken to ensure that nobody is trespassing or encroaching onto the site. If any such occupiers are discovered, prompt action should be taken. Only a short interruption by the owner is needed to stop the trespasser’s 10 or 12-year clock from ticking. Consideration should be given to whether the property is properly secured, or whether it would be helpful to erect physical barriers, such as concrete bollards.

It is even more important for unregistered land, which may have been in the developer’s portfolio for many years, as the procedure is much easier for the trespasser. In one case, a land owner lost extremely valuable development land in Berkshire to a trespasser.

Where land is being acquired for development, all the proper checks should be carried out, to make sure that the seller does indeed own the land, and that nobody else is occupying any part of it. Careful site inspections and asking appropriate questions will be key. If there is any doubt, the seller should be pressed to take action before the sale completes.

Jill Carey is a senior associate in the real estate disputes team at international law firm Taylor Wessing