In the area of land ownership, over the last few months, we have dealt with at least two cases of situations where our clients have taken possession of a piece of land without the consent of the owner of that land. They have either incorporated the land as their own or treated it as their own. This is known as making out a case of adverse possession
or commonly known as squatter’s rights
, because the possession and physical control is contrary to the title owner. We are very familiar with the legal arguments necessary in these types of cases and have developed an expertise in the area.
When it comes to land ownership, does that possession entitle them to be registered as the owner of the land, or treated as owner of the land?
In cases of land ownership, much depends on the period of possession and the actions of the person asserting ownership.
In the famous case of Pye v. Graham
, the House of Lords in 2002 stated that in order for the squatter to show a case for adverse possession
the squatter should not have obtained the owner’s consent to use the land. The squatter needs also to exclude all parties from the land, including the owner.
However, a crucial point is whether the squatter had actual possession of the land before 13th October 1991 and can comply with the tests in Pye. This is because in that situation they would automatically succeed in owning the land and the owner would be treated as holding the land on trust for the squatter.
If actual possession of the land started post 13th October 1991 and was for a period of 10 years at the very least, then a new regime under the Land Registration Act 2002
applied. This would mean that the squatter would need to apply to the Land Registry for them to be registered as owner. Also, this would necessitate the giving of notice to the owner who would have grounds to object within 65 days
and the Land Registry could direct the owner to start Court proceedings.
Therefore it is now much harder for the squatter to claim ownership of land if possession of the land started post 13th October 1991.
It is believed that the law changed because cases where squatters succeeded in claiming ownership of the land, or alternatively claimed compensation, was causing adverse publicity. This change in the law seems draconian and unfair, particularly where the squatter has cared for and looked after the land, which would otherwise possibly have become derelict.
So, in reality, possession is not always 9/10 of the law, but could depend on when the possession started and for how long?
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