Adverse Possession - March/April 2023 Edition

The term “adverse possession” is used in English land law to describe how someone or a legal entity, such as a parish or town council, can obtain title to land despite having no deeds. It is important in proving the right to establish title to build up evidence of use.

To claim title by adverse possession, the applicant must show that they have been in possession of the land, and that this possession has been “adverse”, for the period prescribed by the Limitation Act (12 years).

Possession may be adverse if the applicant has possession of the land, either by dispossessing the owner or by entering at some time after the owner has discontinued his own possession. There is no statutory definition of “adverse”, but it may be understood as meaning possession which is inconsistent with the rights of the owner (although it is clear that it does not have to be in any way hostile or aggressive).

There are two essential elements of possession, both of which must be shown to exist: the fact of possession and the intention to possess.

The fact of possession

What is required here was described in a case in 1970 as follows: “…what must be shown as constituting factual possession

is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.” What the applicant does with the land depends upon its nature. If it is a piece of land adjoining their garden, they may fence and cultivate it. Whatever the nature of the land, the applicant must be able to show that they

have exclusive possession; sharing possession with the owner is not enough.

Intention to possess

As well as taking physical possession of the land, the applicant must have the intention to possess it. This was defined in the same 1970 case as follows: “…the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title …so far as is reasonably practicable and so far as the processes of the law will allow.” The applicant must not only

have this intention, but they must also make it clear to the whole world. This can be done by making a precedent statutory declaration. Sometimes a council can prove that it was its intention to possess the land but then allows the public use of

the land as open space.

If your council would like to consider taking adverse possession of land, or if it thinks it has already had adverse possession for 12 years or more and would like to attempt to register, please contact Northants CALC (info@northantscalc.com) and we can put you in touch with the experts in the field.