adverse possession
Squatters’ Rights or Adverse Possession
Adverse possession, or “squatters’ rights” as it is more commonly known, is one of the most emotive issues connected with the law of property in England and Wales, as it can result in seemingly grave injustices, with high-profile examples resulting in headlines such as “‘Britain’s biggest ever land-grab’” (The Guardian 9 July 2002) and “Squatter’s rights; the tramp who acquired a £4m plot of land” (The Times 18 April 2008). So what is adverse possession and why does this apparently legal form of theft exist?
The history and rationale behind adverse possession
Adverse possession is simply the way in which squatters may acquire rights of ownership over land, at the expense of the legal owner. The legal doctrine of adverse possession developed over hundreds of years when land was unregistered and the only way in which legal ownership could be established was by inspecting the deed which transferred the property to the current owner (nowadays land tends to be registered and the ownership of land can be easily established by a simple search at the Land Registry) and so it was thought beneficial that the legal boundaries should accurately reflect the physical boundaries of parcels of land. This rationale has been diminished by the advent of a system of comprehensive land registration – the details of ownership and boundaries (amongst other things) are now held centrally by the Land Registry and the register is open to public inspection. However, it is important to note that at present not all land in England and Wales is registered.
There is also a social utility argument for adverse possession: there are currently an estimated 840,000 unused or abandoned properties. With Britain facing a housing crisis, there are some who argue that if an owner is careless enough to leave a property vacant and allow it to fall into disrepair then why shouldn’t an enterprising person make use of it?
Adverse possession is also governed by limitation periods of 10 or 12 years, designed to prevent claims and disputes arising after long stretches of time.
Gaining ownership through adverse possession
The person claiming adverse possession must be on the land without the landowner’s consent: therefore a tenant or a licensee will not be able to claim as their possession would not be “adverse”, they would be there with the permission of the landowner (the permission being the tenancy agreement, lease or licence). However, squatting will not automatically lead to ownership. Occupation or possession must be shown, this is normally a question of fact and so the erection of a fence around land; the changing of locks; the upkeep, maintenance or use of the land can all be examples of the sufficient level of occupation or possession.
There are two different ways of claiming adverse possession: in the case of unregistered land, a squatter must occupy or possess the land for 12 years before applying to become the owner.
In the case of registered land, the squatter must occupy the land for just 10 years, once s/he applies to be registered as owner the Land Registry contacts the registered legal owner who then has 3 months to object to the registration. Once the owner has objected s/he has two years in which to evict the squatter, if no action is taken then the squatter may re-apply after 2 years and the Land Registry will not send a further notification to the legal owner and the squatter will be registered as the owner. In the case of registered land then, it will be much harder for squatters to acquire ownership of property (especially now that the Land Registry allows for several different addresses for service including an email address).
The regime for acquiring property by adverse possession in the case of registered land is much more weighted in favour of the legal owner of the land, whereas in the case of unregistered land the process is more straightforward for the squatter, which is surely another compelling reason for ensuring that all land in the UK is registered.
Adverse possession and Human Rights
Article 1 of Protocol 1 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998) relates to the protection of property and states that:
“Every… person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
This provision would seem to render adverse possession illegal. In one case the European Court of Human Rights ordered the UK government to pay compensation to a landowner whose property had been awarded to a squatter, however this decision was overruled on appeal and both the European Court and more recently the Court of Appeal have held that the doctrine of adverse possession is human rights compliant.
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