Adverse Possesion of land

MarieAAP

Morning Folks

Here is a very long one from Mum, so please bare with me, s she is needing some advice about the house she is buying in West Yorkshire.

There are 3 parcels of land, 2 including the house were bought and transferred correctly, but the 3rd the side garden parcel was overlooked and never transferred from the registered keeper. He is elderly and although an address has been found, he hasn't! It might be he is just away for a few days, but he might now have dementia and not in a position to consent to transfer the last parcel of land within the single outside boundarys.

The current owners moved in on 9th Feb 2001 - so the 10 years would be up early in Feb

So my query is - How long might it take to deal with this legally if all the preparation was done ready to apply on the above date?

Thanks.
Marie

MarieAAP

And this is the stuff that has been found the on the net.

Adverse Possesion of land - acquiring possession of land not owned but occupied
http://www.legalcentre.co.uk/property/guide/adverse-possession-of-land/
Summary
Since Oct 2003 if you have used land for 10 years with the intension of possessing it you can apply to become the owners
Adverse Possession of Land by Emma Harwood – Solicitor

Our guide to understanding about adverse possession of land.
Acquiring land by “Adverse Possession” is the process by which a person who is not the legal owner of the land can become the owner of the land after occupying it for a specified period of time.
Adverse Possession and the Land Registration Act 2002
The Land Registration Act 2002 came into force on 13 October 2003, and introduced a new legal scheme to the acquisition of registered land (title to land previously registered at the Land Registry) by adverse possession.



Land Registration Act 2002 disapplies the previous law on adverse possession to registered land, so that there are two regimes affecting the aquisition of land by adverse possession:

• The regime applicable for registered land under the Land Registration Act 2002. This new scheme relates only to registered land.
  
• The previous regime, which only applies to unregistered land and registered land where the possession relied upon, is for a period of at least twelve years ending before 13 October 2003.

The law on adverse possession as it stood before the Land Registration Act 2002 came into force continues to apply to unregistered land and to registered land where the possession relied upon is for a period of at least twelve years ending before 13 October 2003.


The Right to Apply for Registration after Adverse Possession

Time: How long does a person need to possess the land?
The period of adverse possession and occupation of the registered land is “ten years”, not the “twelve” year period, which continues to apply to unregistered land and registered land where the possession relied upon is for a period of twelve years ending before the Land Registration Act 2002 came into force.
This means that a person wishing to claim adverse possession of registered land would need to continuously occupy the land for ten years, or for a period of twelve years if the land is unregistered or if the period of time of occupation is ended before 2003.
Establishing Adverse Possession


There are two elements a person needs to establish for a claim of adverse possession, regardless of whether the claim is in respect of registered or unregistered land. To claim title to the land by adverse possession, the claimant needs to prove the following:

• Uninterrupted “factual” possession of the land by the claimant for the requisite period of time.
  
• “Intention” on the part of the claimant to possess the land during that period of possession.

Factual Possession of the Land
As previously mentioned, the land must have been in the claimant’s factual possession for the requisite period. This is twelve years under the old regime, and will continue to be twelve years in respect of unregistered land and registered land where the period of possession ends relied upon ends before 13 October 2003. Under the Land Registration Act 2002, which applies only to registered land, the period is ten years.

For factual possession, the claimant may acquire possession of the land by dispossessing the title owner of the land i.e. occupying land belonging to someone else (which will be the usual situation), or by taking possession of land that has been abandoned by the owner (which is less usual because abandonment of land is not easily established). The occupation of the land must be without the consent of the owner. The claimant at the time of the possession must not be legally entitled to occupy the land i.e. with the owner’s permission or under a legal interest such as a lease, licence or tenancy.

There must be a sufficient degree of exclusive physical control over the land. What is sufficient will depend on the circumstances and, in particular, the nature of the land and the manner in which land of that nature is commonly used. Broadly, the person in possession must have been dealing with the land as an occupying owner might have been expected to deal with it, and no one else must have done so.

An example would be the occupation of a “field”. The claimant would need to maintain the land and regularly cultivate the land such as mowing the grass, tending to flowers, and cutting trees. The claimant would regularly use the land such as growing crops, grazing animals and treat the land like their own exclusively and as the registered title owner would have done.

It may be possible, in appropriate circumstances, to acquire title by adverse possession of an unregistered foreshore and river bed by reason of mooring.

There is no requirement that adverse possession should be apparent to anybody inspecting the land.

Intention to Possess the Land
The claimant must establish that they intended to possess the land during the period of possession i.e. the claimant must intend to possess the land and not be occupying it by mistake, such as a mistake with the boundary line and they thought the land was theirs for example an extension to their garden, resulting in encroachment of neighbouring land.

This must be an intention to possess in the claimants own name, on their own behalf and to the exclusion of all others (including the owner with the legal title), so far as is reasonably practicable and so far as the processes of law will allow. A claimant could show they had possessed the land continuously to the exclusion of all other by for example fencing the land off or growing hedges around the land for their exclusive use.
An intention to possess to the exclusion of all others is not the same as an intention to own or acquire ownership.

Making the Adverse Possession Application
Once the above conditions are satisfied, the claimant would need to make an application to the Land Registry (www.landregistry.gov.uk). This application would need to be accompanied by a statutory declaration or a statement of truth (a sworn statement) outlining details of the claimant’s possession of the land for the requisite period of time and without the consent of the owner. A legal professional will be able to assist you with this application.
The evidence must show that the applicant had been in adverse possession of the registered estate for a period which, if it were to continue from the date of the applicants statutory declaration or statement of truth to the date of the application, would be not less than ten years ending on the date of the application. It is prudent to include any additional evidence that the applicant considers necessary to support their claim such as plans of the land and boundaries, photos of the land or supporting statutory declarations of friends or neighbours that confirm that the applicant has been using the land continuously and exclusively for the requisite period.

Once the application has been received by the Land Registry, they will usually send a surveyor to visit the land. The surveyor may take measurements of the land; this is merely to establish that the land applied for exists and to assist in plotting accurate boundaries to the land on the title plan.

Once the application is complete and the land is registered, the applicant will be granted “absolute” title to the land. Where the applicant is registered as the proprietor, they will generally take the land free of any registered charges. In some cases where there is insufficient evidence, the applicant will only be granted a “possessory” title (this is a lesser quality title to the land.)

Where the previous registered proprietor had been registered with absolute title, the applicant will also be registered with an absolute title. Equally, where the previous proprietor had been registered with possessory title, the applicant will be registered with possessory title.

Once the applicant is registered as the new proprietor of the land this is a proprietary right, and as such, it can be asserted against the registered proprietor. It will bind any third party to whom the registered proprietor makes a registered disposition of the land, provided that the applicant was in actual occupation of the land; the applicant’s unregistered interest would override the registered disposition. WHAT DOES THIS MEAN?

Special circumstances
The general rule is that a person will be entitled to apply to be registered as the proprietor of a registered estate in land if the person can prove to the Land Registry that they have been in adverse possession of the land for ten years ending on the date of the application.


A person may still apply for registration of land via adverse possession even if evicted after ten years of adverse possession. If a person who has already been in adverse possession for ten years is then evicted by the registered proprietor or by a person claiming under the registered proprietor, that person can still apply to be registered as the new proprietor. The person must satisfy the following:

• Make the application for registration within six months after the eviction.
  
• Have been entitled to apply to be registered the day before the eviction.
  
• Not have been evicted pursuant to a court order for possession.

Circumstances where no application can be made
Even if a person has been in adverse possession for the requisite ten year period, there are certain situations in which the person is not entitled to apply for registration as the new proprietor of the property:

Where the person is a defendant in proceedings involving possession of the land.
Where judgement for possession has been given against the person
Where the registered proprietor is an enemy or detained in enemy territory
Where the registered proprietor cannot make decisions or communicate decisions by reason of mental disability or physical impairment.
Protection against Adverse Possession

Registration by the landowner

The adverse possession scheme under the Land Registration Act 2002 offers more protection to registered landowners against claims for adverse possession than the previous scheme, which will continue to apply to unregistered land. Unregistered land owners may therefore consider applying for voluntary first registration and, indeed, the Land Registry has stated that one of its strategic objectives is to achieve the registration of all land in England and Wales by 2012.
Checking and maintaining accuracy of proprietor's name and address on register
Registered proprietors should check that their current names and addresses are complete and accurate, so that any notice of an application by a claimant for adverse possession will be properly received. This is important. A failure to respond to notification of an application may lead to the registration of the claimant as the new registered proprietor of the land.

Fixing boundaries
Any landowner who is concerned that its boundaries are not clear and who is concerned that there may be a potential encroachment and claim for adverse possession, may consider applying for the boundaries to be fixed to exclude the possibility of a person establishing the adverse possession conditions and being entitled to be registered as the proprietor.

If you found this guide useful then we hope you will enjoy our other property guides in our Law Library.

So in layman terms, what does this mean for her? Any ideas?
Thanks
M

martindow

Marie, could you change the colour of your second post please? It is almost impossible to read on my computer as it is so pale.

Sheilachina

Adverse Possession of Land
by Emma Harwood - Solicitor
Our guide to understanding about adverse possession of land.

Acquiring land by “Adverse Possession” is the process by which a person who is not the legal owner of the land can become the owner of the land after occupying it for a specified period of time.

Adverse Possession and the Land Registration Act 2002
The Land Registration Act 2002 came into force on 13 October 2003, and introduced a new legal scheme to the acquisition of registered land (title to land previously registered at the Land Registry) by adverse possession.

Land Registration Act 2002 disapplies the previous law on adverse possession to registered land, so that there are two regimes affecting the aquisition of land by adverse possession:

The regime applicable for registered land under the Land Registration Act 2002. This new scheme relates only to registered land.

The previous regime, which only applies to unregistered land and registered land where the possession relied upon, is for a period of at least twelve years ending before 13 October 2003.
The law on adverse possession as it stood before the Land Registration Act 2002 came into force continues to apply to unregistered land and to registered land where the possession relied upon is for a period of at least twelve years ending before 13 October 2003.

The Right to Apply for Registration after Adverse Possession
Time: How long does a person need to possess the land?

The period of adverse possession and occupation of the registered land is “ten years”, not the “twelve” year period, which continues to apply to unregistered land and registered land where the possession relied upon is for a period of twelve years ending before the Land Registration Act 2002 came into force.

This means that a person wishing to claim adverse possession of registered land would need to continuously occupy the land for ten years, or for a period of twelve years if the land is unregistered or if the period of time of occupation is ended before 2003.

Establishing Adverse Possession
There are two elements a person needs to establish for a claim of adverse possession, regardless of whether the claim is in respect of registered or unregistered land. To claim title to the land by adverse possession, the claimant needs to prove the following:

Uninterrupted “factual” possession of the land by the claimant for the requisite period of time.

“Intention” on the part of the claimant to possess the land during that period of possession.
Factual Possession of the Land

As previously mentioned, the land must have been in the claimant’s factual possession for the requisite period. This is twelve years under the old regime, and will continue to be twelve years in respect of unregistered land and registered land where the period of possession ends relied upon ends before 13 October 2003. Under the Land Registration Act 2002, which applies only to registered land, the period is ten years.

For factual possession, the claimant may acquire possession of the land by dispossessing the title owner of the land i.e. occupying land belonging to someone else (which will be the usual situation), or by taking possession of land that has been abandoned by the owner (which is less usual because abandonment of land is not easily established). The occupation of the land must be without the consent of the owner. The claimant at the time of the possession must not be legally entitled to occupy the land i.e. with the owner’s permission or under a legal interest such as a lease, licence or tenancy.

There must be a sufficient degree of exclusive physical control over the land. What is sufficient will depend on the circumstances and, in particular, the nature of the land and the manner in which land of that nature is commonly used. Broadly, the person in possession must have been dealing with the land as an occupying owner might have been expected to deal with it, and no one else must have done so.

An example would be the occupation of a “field”. The claimant would need to maintain the land and regularly cultivate the land such as mowing the grass, tending to flowers, and cutting trees. The claimant would regularly use the land such as growing crops, grazing animals and treat the land like their own exclusively and as the registered title owner would have done.

It may be possible, in appropriate circumstances, to acquire title by adverse possession of an unregistered foreshore and river bed by reason of mooring.

There is no requirement that adverse possession should be apparent to anybody inspecting the land.

Intention to Possess the Land

The claimant must establish that they intended to possess the land during the period of possession i.e. the claimant must intend to possess the land and not be occupying it by mistake, such as a mistake with the boundary line and they thought the land was theirs for example an extension to their garden, resulting in encroachment of neighbouring land.

This must be an intention to possess in the claimants own name, on their own behalf and to the exclusion of all others (including the owner with the legal title), so far as is reasonably practicable and so far as the processes of law will allow. A claimant could show they had possessed the land continuously to the exclusion of all other by for example fencing the land off or growing hedges around the land for their exclusive use.

An intention to possess to the exclusion of all others is not the same as an intention to own or acquire ownership.

Making the Adverse Possession Application
Once the above conditions are satisfied, the claimant would need to make an application to the Land Registry This application would need to be accompanied by a statutory declaration or a statement of truth (a sworn statement) outlining details of the claimant’s possession of the land for the requisite period of time and without the consent of the owner. A legal professional will be able to assist you with this application.

The evidence must show that the applicant had been in adverse possession of the registered estate for a period which, if it were to continue from the date of the applicants statutory declaration or statement of truth to the date of the application, would be not less than ten years ending on the date of the application. It is prudent to include any additional evidence that the applicant considers necessary to support their claim such as plans of the land and boundaries, photos of the land or supporting statutory declarations of friends or neighbours that confirm that the applicant has been using the land continuously and exclusively for the requisite period.

Once the application has been received by the Land Registry, they will usually send a surveyor to visit the land. The surveyor may take measurements of the land; this is merely to establish that the land applied for exists and to assist in plotting accurate boundaries to the land on the title plan.

Once the application is complete and the land is registered, the applicant will be granted “absolute” title to the land. Where the applicant is registered as the proprietor, they will generally take the land free of any registered charges. In some cases where there is insufficient evidence, the applicant will only be granted a “possessory” title (this is a lesser quality title to the land.)

Where the previous registered proprietor had been registered with absolute title, the applicant will also be registered with an absolute title. Equally, where the previous proprietor had been registered with possessory title, the applicant will be registered with possessory title.

Once the applicant is registered as the new proprietor of the land this is a proprietary right, and as such, it can be asserted against the registered proprietor. It will bind any third party to whom the registered proprietor makes a registered disposition of the land, provided that the applicant was in actual occupation of the land; the applicant’s unregistered interest would override the registered disposition.

Special circumstances

The general rule is that a person will be entitled to apply to be registered as the proprietor of a registered estate in land if the person can prove to the Land Registry that they have been in adverse possession of the land for ten years ending on the date of the application.

A person may still apply for registration of land via adverse possession even if evicted after ten years of adverse possession. If a person who has already been in adverse possession for ten years is then evicted by the registered proprietor or by a person claiming under the registered proprietor, that person can still apply to be registered as the new proprietor. The person must satisfy the following:

Make the application for registration within six months after the eviction.

Have been entitled to apply to be registered the day before the eviction.

Not have been evicted pursuant to a court order for possession.
Circumstances where no application can be made

Even if a person has been in adverse possession for the requisite ten year period, there are certain situations in which the person is not entitled to apply for registration as the new proprietor of the property:

Where the person is a defendant in proceedings involving possession of the land.
Where judgement for possession has been given against the person
Where the registered proprietor is an enemy or detained in enemy territory
Where the registered proprietor cannot make decisions or communicate decisions by reason of mental disability or physical impairment.

Protection against Adverse Possession
Registration by the landowner

The adverse possession scheme under the Land Registration Act 2002 offers more protection to registered landowners against claims for adverse possession than the previous scheme, which will continue to apply to unregistered land. Unregistered land owners may therefore consider applying for voluntary first registration and, indeed, the Land Registry has stated that one of its strategic objectives is to achieve the registration of all land in England and Wales by 2012.
Checking and maintaining accuracy of proprietor's name and address on register
Registered proprietors should check that their current names and addresses are complete and accurate, so that any notice of an application by a claimant for adverse possession will be properly received. This is important. A failure to respond to notification of an application may lead to the registration of the claimant as the new registered proprietor of the land.
Fixing boundaries

Any landowner who is concerned that its boundaries are not clear and who is concerned that there may be a potential encroachment and claim for adverse possession, may consider applying for the boundaries to be fixed to exclude the possibility of a person establishing the adverse possession conditions and being entitled to be registered as the proprietor.
I am mother

lincroft1710

I'm not an expert and may be completely wrong, but I read it that the person wishing to claim adverse possession has to have occupied land for 10 yrs (Regd) or 12 yrs (Unreg). So unless the land is registered and she and present owners are prepared to wait until after Feb 2011 to exchange, because that is the earliest date present owners can apply for AP, neither she nor the vendor would have title to this land. If land is unregistered then she's got to wait 12 years after her purchase.

Your mother really should be consulting her solicitor about this, she needs proper legal advice.

Sheilachina

The property is made up of 3 parcels of land. 1st - house and forward, 2nd - a small portion at the back and 3rd to the side and further back. The solicitors did not transfer the 3rd parcel land to the current occupiers, but all three had been owned by the previous owner and the understanding was their purchase was for all the areas which are within the single boundary. it seems the 3rd portion was just forgotten / overlooked and not dealt with. It is that which is holding up their ability to sell the whole property.
So the question is how long might the procedure take from the date it is possible to use 'Adverse possession' law?

clutton_2

your solicitor can ask the previous owner if he is willing ot sign a Statutory Declaration as to how long he has used the land. The 10/12 years does not have to be in the usage of the same person as far as i know....

Sheilachina

they have an address but he doesn't seem to be there. I am trying to find out what we can do if he has disappeared, / got dementia / died and not easy to find the descendants ....He is elderly

clutton_2

you can also ask a neighbour who has seen the plot being used by whoever for x number of years on a consistent basis

MarieAAP

The elderly gentleman has been found, and signed the papers

So thanks for your help.

Marie & Sheila (mum)