Squatter’s rights….is your land safe? (PART 1 of 3)
15th February 2009
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(Article provided by Francis Whitehead, B.A. (Hons), Dip. in Land Registration Law and Practice, Solicitor. Whitehead Woodward & Co., Solicitors)

A person who occupies land belonging to someone else without permission is a trespasser. However, a trespasser can become the lawful owner of land - he is often said to have acquired 'squatter's rights' .

In England and Wales, people own either registered or unregistered land. If your land is registered, it will have been allocated a title number, and the extent of what you own will have been mapped by Land Registry, using the ordnance survey. For many years now, people who have bought unregistered land, whether it is a house, paddock or field, have had to register it at Land Registry, and the consequences of failing to do this can have repercussions, though these are outside the scope of this article.

If a trespasser has 'physical possession' of land and, at the same time, demonstrates that he 'intends to possess' the land to the exclusion of everyone else, even the true owner, he will be in 'adverse possession' .

In English law there is a statutory principle known as 'limitation'. It prevents a person from bringing court proceedings against anyone who has caused him loss or injury after a certain period of time.

In relation to land, if a trespasser has adverse possession of unregistered land and the owner fails to take eviction proceedings before the end of, normally, 12 years (there are exceptions) from the time when the trespasser first occupied it, the owner will lose his land (Limitation Act 1980), and the trespasser could apply for registration of it. The registration, though, will be subject to any existing rights, restrictive covenants or mortgages which pre-date when the trespasser first took possession.

A trespasser who can rely on 12 years' adverse possession of registered land, which ended before 13th October 2003 but after the land was registered, is entitled to be substituted as the registered owner. It doesn't matter that the land has not been registered land for the whole 12 year period. So, if for example, a trespasser occupied unregistered land on the 8th January 1990, which the owner registered on 10th October 2001, he may claim entitlement to the registered land on 8th January 2002, if the owner has taken no steps to evict him.

However, taking registered land from a registered owner in these circumstances has recently been seen by the courts to breach article 1 of the First Protocol to the Human Rights Convention (Beaulane Properties Ltd -v- Palmer). The court decided this breach could be avoided if an interpretation of adverse possession from the 19th century was applied. It used to be thought then that where an owner had no present use for his land, even substantial acts of possession by a trespasser did not constitute adverse possession if they did not interfere with the owner's use or intended future use of the land. The Judge felt obliged to adopt this interpretation in order to observe s.3 of the Human Rights Act 1998. So, in cases where a 12 year period of adverse possession ends on or after 2 October 2000 (when the Human Rights Act 1998 came into force) but before 13 October 2003 (when the Land Registration Act 2002 came into force, and which is considered compatible with one's human rights), if an owner has no present use for his land but is, for example, planning to build on it at some time in the future, the use of the land by a trespasser in the meantime as a garden, or for grazing a horse etc., will not be adverse possession and a trespasser's claim is likely to fail.

The Land Registration Act 2002 (the Act) made significant changes to adverse possession of registered land. Unless a squatter's rights over registered land have fully accrued before 13th October, they do not continue to accrue, and the trespasser must look to the Act for help.

(continued in part 2 HERE)

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