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Adverse possession

Posted on 1st September 2016

In this uncertain time of very high property prices and a very low likelihood of getting a mortgage it is shocking to see the number of properties that sit empty. The housing crisis and the number of empty properties has led to people “squatting” in other people’s empty homes. This can lead to people losing their homes through a claim for adverse possession.

What is adverse possession?

Adverse possession allows people to claim valid title of a property belonging to another person so long as the requirements for adverse possession are met. In order to prove adverse possession, a person must show that they are in physical possession of a property without the permission of the owner and that person must have treated the property as their own intending to exclude the world at large and have done so for more than 10 years. The element of “treating it as your own” is very important. It is more than just staying in a property without permission. It is to treat the property as a person would their own; decorate it, make repairs, pay utilities and exclude others from doing the same.

In the recent case of Heaney v Kirkby, Mrs Kirkby made an application for adverse possession for land neighbouring her property. The piece of land was referred to as the Verge. Neither Mrs Kirkby nor her neighbour, Mr Heaney had legal title to the Verge. From June 1999, Mrs Kirkby redeveloped the Verge and used it regularly. She connected drainage, cleared and planted flowers and developed the land. In February 2012, Mr Heaney gained legal title of the Verge from the paper owner. In April 2012, Mrs Kirkby applied to the Land Registry for legal title of the Verge by adverse possession. A decision was made in favour of Mrs Kirkby, with the Judge finding that Mrs Kirkby had been in actual possession of the Verge since 1999 and that her actions had excluded others from using the land. The Judge was satisfied that Mrs Kirkby had complied with the requirements for adverse possession. This shows that it is not only residential properties for which a person can claim adverse possession but any land that is not being used by the legal owner.

How to make a successful adverse possession claim

The case above shows that in order to make a successful claim for adverse possession a person must show that they have been in actual possession of the property and have treated it as their own excluding all others from use. A key point of the above case was that Mrs Kirkby used the Verge to hold scaffolding when she was redeveloping her own property. When the scaffolding had been erected, no other person could use the property. It is very important that this can be shown clearly when making an application. It is therefore key that evidence of possession for the requisite 10 years is demonstrated and that the evidence of use is also presented.

The Land Registry will not approve an application where they have any doubt about an applicant’s possession. The key to a successful application is therefore possession and evidence of that possession.