If the apparent inconsistency of the occupied land as compared to the boundaries shown at Land Registry is due simply to an inaccuracy of the Land Registry Title Plan then this is not a matter for an adverse possession application.
In a situation such as this, what is referred to as the ‘squatter’ should consider an application to alter their title plan or their title plan and their neighbour’s title plan or possibly just their neighbour’s title plan to show the boundaries more accurately. This application would need to be made to Land Registry identifying the title(s) to be altered and making clear the nature of the alteration sought and the basis for this.
An application for adverse possession would be appropriate where the mis-match between the land boundaries and the occupation of the land is not due to a boundary recording error but is as a consequence of the occupancy of land which it is acknowledged is not within the ownership of the squatter but to which the squatter wishes to make a legal claim.
The essential requirements of a successful Adverse Possession application are as follows:
- the squatter has factual possession of the land
- the squatter has the necessary intention to possess the land
- the squatter’s possession is without the owner’s consent
- all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application
However, it must be noted that there are significant differences between an application for Adverse Possession of land which is not Registered with Land Registry and land which is Registered.
For unregistered land, generally, a squatter’s application will be successful after 12 years of confirmed validated adverse possession of the land. Thus, the legal title of the former owner will be extinguished and this former owner’s right to recover possession of the land will be legally barred. The effect is that the squatter will obtain legal title of the land but this will be what is known as possessory title rather than absolute title; possessory title can be upgraded to absolute title after a further 12 years.
For registered land, the situation is less straightforward as an intended consequence of the Land Registration Act 2002. The process for registered land is that, after 10 years of claimed adverse possession, a squatter can submit their application to Land Registry. Following this, the paper title owner has 65 working days to respond to either agree or challenge the application. If the application is challenged by the owner and if the applicant cannot successfully counter this according to some specific legal conditions, the owner’s challenge to the adverse possession application will stand. The legal owner then has a further two years to evict the applicant from the land. Only after this further two years, if the owner has not taken action to regain possession, can the applicant re-apply to Land Registry to be successfully granted possessory title.