Assertions of adverse possession (or “squatter’s rights”), where an individual is entitled to claim ownership of land by virtue of the fact that they have used the land as their own for an extended period, are frequently the cause of prolonged and expensive litigation. The Land Registration Act 2002 was intended, in part, to prevent or simplify such disputes and introduced a new scheme for dealing with adverse possession claims where an individual can establish ten years’ use of “registered land” (i.e. where the ownership of land has been registered with HM Land Registry) since October 2003, however approximately 25% of land in England is still unregistered and so disputes involving such land will continue to be determined using the rule from section 17 of the Limitation Act 1980 which requires twelve years’ use to make out a claim for adverse possession.
The test for establishing adverse possession has been considered by the courts a number of times over the years culminating in the decision in J A Pye (Oxford) Limited v Graham  1 AC 419, affirming Powell v McFarlane (1977) 38 P&CR 452, which provided a two-stage formulation requiring “factual possession” and an “intention to possess” (see paragraph 40 of Pye).
Determining whether a particular individual has satisfied both elements inevitably depends on the specific facts of the case and the history of the land in question; it is often more helpful to consider the judgment of Morgan J in the case of Balevents Limited v Sartori  EWHC 1164 (especially paragraph 79), which involved the ownership of part of the pavement outside a sometime jazz- or lap-dancing club in Birmingham where the relevant principles are expanded and set out as follows:
(1) There is a presumption that the owner of land with a paper title is in possession of the land.
(2) If a person who does not have the benefit of this presumption wishes to show that he is in possession of the land, the burden is on him to show that he is in factual possession of the land and that he has the requisite intention to possess the land.
(3) For a person to show that he is in factual possession of the land, he must show that he has an appropriate degree of physical control of the land, that his possession is exclusive and that he has dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done so.
(4) Whether a person has taken a sufficient degree of control of the land is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed.
(5) The person claiming to be in possession may be in possession through his tenant or licensee, if that tenant or licensee has, on the facts, sufficient control of the land to amount to factual possession.
(6) The person seeking to show that he has had possession of land must show that he had an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title.
(7) The relevant intention is an intention to possess and need not be an intention to own.
(8) The intention to possess must be manifested clearly so that it is apparent that the person now claiming to have been in possession was not merely a persistent trespasser.
(9) If the acts relied on are equivocal then they will not demonstrate the necessary intention.
(10) It is possible in some cases for a person in possession to add to his own period of possession, the period of time during which his predecessor was in possession; this applies in particular where the predecessor relinquishes possession to a person who then takes possession.
Inevitably, as indicated above, “the devil will be in the detail” of each case but when considering (and advising on) the merits of a claim for adverse possession it is useful to use the Balevents principles as a checklist when gathering evidence so that particular emphasis should be placed, at the earliest stage possible, on establishing the answers to the following questions:
- What paper title documents are available?
- Are there any historic deeds or other documents for the disputed land or neighbouring land which could shed some light on ownership especially in the case of unregistered land?
- Was the land previously part of a larger landholding (e.g. a farm or an estate); if so, are any documents available in respect of that larger area?
- What steps have been taken (and when) to ensure and to demonstrate exclusive physical control of the land, e.g. fencing the land or locking gates preventing access by others?
- What, if any, interaction or contact has there been with third parties regarding the land, especially other individuals who have, or could have, claimed an interest or use of the disputed land?
- What actual (and evidenced) use has been made of the land by the person claiming the land, including any tenant or licensee of that person, or by others?
- Has that use changed over the years, either as regards the specific activities or the intensity of the use? Was, and is, such use consistent with exclusive possession by any party?
- Is there evidence of a past (and present) intention to actually possess the land, as opposed, for instance, to a desire to do as little as necessary to give rise to a potential claim of ownership in the future?
- Is the evidence of use open to alternative interpretations?
- A “persistent trespasser” will not be able to claim adverse possession.
- Most importantly, what evidence (whether documentary or in the form of the testimony of witnesses) exists dealing with each of those elements; adverse possession claims will often be decided on the Judge’s assessment of the credibility, of the witnesses, particularly where there is insufficient or contradictory documentary evidence on the relevant issues.
Adverse possession claims, as with many land disputes, can be astonishingly expensive to fight, often far in excess of the value of the disputed land itself: whether an individual is claiming land or responding to a claim it is advisable to obtain comprehensive professional advice on the merits of any such claim as early as possible. Members of the civil team at Becket Chambers can provide advice and assistance on a variety of property disputes, including adverse possession claims. Please contact the clerks for further information.