Boundary disputes 3 – Adverse possession

News - 02/04/2013

In my last posts, I looked at how to establish who is the “paper owner” of the land subject to a boundary dispute; that is, the person that owns the land according to the deeds.

But this is only half the story. Even if it can be shown that one person is the paper owner, their neighbour may still have acquired ownership of the land through “adverse possession”, commonly called “squatters rights”.

[pullquote_right]…because the true owner cannot evict them, the trespasser then becomes the legal owner.[/pullquote_right]Adverse possession occurs where the owner of the land does not evict a trespasser within a certain period of time, after which the owner loses the right to evict them. Because the true owner cannot evict them, the trespasser then becomes the legal owner.

Historically this period was 12 years under the Limitation Act 1980, but this changed with the Land Registration Act 2002. There are now two “systems” of adverse possession.

The “Old” system

In respect of registered land, If a neighbour has trespassed for 12 years or longer prior to 13 October 2003 then they have adverse possession of the land. Note that the whole 12 years must have occurred prior to 13 October 2003, and cannot include any period after that date.

This system continues to apply to unregistered land.

The “New” system

The “New” system applied to registered land only from 13 October 2003. The trespassing neighbour does not automatically acquire adverse possession of the land by merely occupying it.

If the trespassing neighbour has been in occupation of the land for 10 years prior to the date of the application they may be able to acquire adverse possession, but will first have to make an application to the Land Registry.

Once that application is made the Land Registry will notify the paper owner of the land, who has a limited period of time within which to serve a counter-notice. If no counter-notice is served then the trespassing neighbour is entitled to be registered as the owner of the land.

In most circumstances, if the counter notice is served, this will defeat the application and the trespassing neighbour will not be entitled to be registered as the owner of the land.

The “Mistaken Boundaries” exception

An important exception to this is where, during the 10 year period, the trespassing neighbour reasonably (but mistakenly) believed that the land immediately adjoining their land (i.e. the land the other side of the boundary) was theirs. If this exception applies then, notwithstanding the counter-notice, the trespassing neighbour may be registered as the owner of the land.

This concludes the series of posts on the legal approach to boundary disputes. Boundary disputes are a very complex and specialist area of law and you should seek advice from someone who specialises in this type of dispute.

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Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.