In this blog post, I am going to be looking into adverse possession in relation to boundary disputes.
It is easy to make mistakes when determining property boundaries especially when there are no original features along the border. In many instances, homeowners unknowingly install boundary fences or build structures that encroach onto their neighbour’s land, which often lead to a dispute.
In such cases, legal action can occur and the law on adverse possession can be complicated.
What Exactly Is Adverse Possession?
To put it simply, it is an occupation of land inconsistent with the right of the ‘true owner’. A true owner is someone who holds the legal title of either the registered or unregistered land under the Land Registration Act.
To be adverse, the trespasser or squatter must be using the land as his own without the consent of the true owner. For example, fencing of the land and securing it in some way or building on it, so that only the trespasser has access to it.
How Could Adverse Possession Affect Me?
You could be in the position of being either the trespasser claiming adverse possession of the land or as the true owner facing an application.
How Can Title To Land Be Obtained By Adverse Possession?
This will depend on whether the land has a registered title and when the title was registered.
Unregistered land in England and Wales is land that has not been registered with Her Majesty’s (HM) Land Registry.
Under Section 15 of the Limitation Act 1980, if the trespasser is in possession of the land for 12 years, then both the right of the true owner to take action for trespass and the title are extinguished. The claimant for adverse possession would need to apply to the court for a declaration that he has acquired the title.
Under the Land Registration Act 2003, the person claiming adverse possession must apply to the Land Registry and not the court. The claimant must show 10 years of adverse possession ending on the date of application. If the true owner evicts the claimant, he must apply within six months provided that he can prove adverse possession for 10 years.
With the Land Registration Act application, the registered owner can object.
In that case, the applicant can only be registered as an owner if he can determine:
- That it would be unreasonable because of equity of estoppel (essentially the conduct of the registered proprietor) for the registered proprietor to dispossess the applicant and the circumstances are such that the applicant ought to be registered. In other words, the registered proprietor of the land has led the trespasser to believe that the trespasser did indeed own it and if the trespasser has acted in some way to his own detriment on the basis of this, then the registered proprietor cannot change his mind and claim the land back.
- That there is some other reason why he should be registered. (For example, the trespasser bought the land, but the legal title was never completed.)
- The trespasser has been in adverse possession of land adjacent to his own under the belief that he is the owner of it. The exact line of the boundary with this adjacent land has not been determined, and the estate to which the application relates was registered more than a year prior to the date of the application. (For example, the dividing walls or fences on an estate were erected in the wrong place.)
On receipt of the application, the Land Registry will inspect the land to check for certain points from the statutory declaration, and to verify that the plan supplied adequately reflects the position on the ground.
A Two-year Wait…
If the application is rejected as a result of a counter-notice or none of the three conditions are met, the applicant will need to wait for a further two-year before resubmitting their application. During this time the true owner may evict the applicant and take steps to legitimise his occupation.
What We Can Do For You…
In order to determine the boundary of a property, it is advisable to obtain specialist advice from a surveyor before disputing with a neighbouring owner. Here at Berry Lodge, we would recommend that in the form of a Boundary Determination Report from a surveyor in the Boundary Dispute team.
As a starting point, we will seek to locate historic title deeds for the property, which may contain detailed plans and measurements. The existence of physical features, such as original fences and hedges can be used as evidence to identify the boundary.
If the parties can reach an agreement on the location of boundaries without going to Court, then a “Boundary Agreement” can be drawn up and signed by the parties. This agreement can then be registered against the respective legal titles on the Land Registry. However, this will still be classed as a “general boundary” rather than a definitive legal boundary. It is possible to individually apply to the Land Registry for a determined boundary by preparing a detailed professional plan that is accurate to 10mm and following the procedure set out in the relevant Land Registry practice guide.
Acquiring registered land by adverse possession is far from straightforward and can be contested by the true owner. If none of the three conditions within the Land Registry Act is met, the applicant risks being evicted from that land.
It may be worth simply continuing to occupy the land without alerting the true owner to the occupation and upsetting the status quo.
From the true owners perspective, it is important to know that registered land has more protection from claims than unregistered land, therefore if your land is unregistered, we would strongly advise you to arrange for this to be registered.
True owners should also ensure that their names and addresses are accurately recorded at the Land Registry so that they are properly and promptly given notice of any applications. Failure to serve a counter-notice may lead to the applicant becoming the registered owner of the land.
In the event that an application is rejected, action should be taken promptly to evict the applicant claiming adverse possession within the two-year period.
It is clear that boundary disputes remain a complicated issue, and that the law as it stands can create the uncertainty encouraging dispute between adjoining owners. Given the implications of a long drawn out legal battle, the best approach will be to gain early professional advice to determine the issues at hand.
If you would like more advice about Boundary Disputes or are potentially facing one, fear not, it is a fairly common position to be in. We would be happy to assist, feel free to give our team of surveyors a call now.