“Better three hours too soon than a minute too late”- 2024’s top lesson on the timing of Adverse Possession claims

In the last year the Upper Tribunal reminded us of the need to act promptly when making an application based on adverse possession. In 2025, the Supreme Court will be asked to evaluate the current interpretation of the law on adverse possession and whether an applicant must have 10 years of reasonable belief of possession immediately prior to the date of application.

The concept of adverse possession is well-known to many landowners. For years those who, for example, had erected a fence in order to enclose another’s land, maintained it and treated as their own for a minimum period of 12 years without the legal owner’s consent, were in a strong position to acquire it. The rules, however, changed in 2003 with the implementation of the Land Registration Act 2002, which introduced a new legal scheme for acquiring title to registered land by adverse possession. This new scheme was intended substantially to restrict the circumstances in which a person would be able to obtain title to registered land based on adverse possession and to make the law in this area more compliant with Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Despite the passage of time, it is still ingrained in the minds of many that the erection of a fence coupled with a sufficient period of possession will result in a successful application. There are, however, other factors that may need to be considered by someone who wishes to claim adverse possession, one being the promptness of his application. While settlement negotiations are generally encouraged, postponing an application based on adverse possession could have drastic consequences.

When a squatter submits an application based on adverse possession, the Land Registry has a duty to notify the paper owner, who can either: (a) consent or ignore the application, in which case the squatter will be registered as the new owner; (b) object on the basis, for example, that the squatter has not been in adverse possession for the required period of time; or (c) issue a counter-notice. The last option did not exist under the old regime and very often is overlooked by those who hope to acquire the land and could make it hard for the squatter to succeed with his application.

If a counter-notice is served, in addition to the usual requirements of adverse possession, the squatter also needs to satisfy one of the conditions set out in Schedule 6, paragraph 5 of the 2002 Act. The most common condition is the third condition, which requires the squatter to demonstrate that, for at least ten years of the period of adverse possession ending on the date of the application, the squatter (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him. The condition is often met in boundary disputes when the squatter is under a reasonable belief that the disputed land belongs to him as part of his own title.

Although many components of the condition do not pose a great difficulty, the interesting point arises in connection with whether this period of ten years must end on the date of the relevant application or can it be any period of ten years within the period of adverse possession. In other words, is it permissible for a reasonable period to elapse between the time when the squatter discovers that the disputed land does not belong to him and the date of the application? It would be wholly impracticable to require the squatter to lodge an application on the day he ceased to have a reasonable belief as to his ownership of the disputed land.

Last year there were many published judgments on adverse possession and two of them addressed precisely this point. The Upper Tribunal reminded us that current authority makes it clear the application based on the third condition will fail if the applicant cannot demonstrate that he had a reasonable belief for the last ten years of his possession up to the date of the application for registration, even though his belief started out as reasonable and remained reasonable for a ten-year period of possession. The consequence is that the paper owner will be able to stop the squatter from acquiring the title to the disputed land if there has a been a delay between the application and the cessation of the reasonable belief. However, some delay in making an application will be inevitable and such a delay will not necessarily prevent the squatter from satisfying the third condition, provided that the application is made promptly. This will be a matter of fact and degree in each case.

The lesson is that, as soon as the squatter learns that he is not the paper owner of the disputed land, he should take steps to protect his position by making an application based on adverse possession.

Later this year the Supreme Court will be asked to decide whether the above interpretation is still good law. One of the Upper Tribunal’s judges expressed a strong view that the law needs to be changed as the more natural interpretation of the third condition is that the (continuous) ten-year period of reasonable belief could be at any time during the period of adverse possession, and not necessarily on the date of the application, as otherwise it would lead to an absurd expectation that an application must be made immediately at the point of realisation that the squatter does not own the land. The situation could be cured by the introduction of a grace period between the coming to an end of the period of reasonable belief and the date of the application, something which has been previously recommended by the Law Commission.

However, until the Supreme Court provides a different interpretation of the timing for the third condition, a person who wishes to make an application based on adverse possession should bear in mind that the promptness is the key. Once someone realises that the boundary is incorrect and that part of the garden does not belong to him on paper, it would be wise to make an application to the Land Registry promptly.

Contact our experienced property disputes and litigation solicitors to discuss your claim

To discuss your adverse possession dispute please contact Anna Gora on 01895 207203 or email her at  anna.gora@ibblaw.co.uk, alternatively do fill out the enquiry form at the top of this page and a member of the team will get back to you.

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