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Practice Guide 5 – Adverse possession of
(1) unregistered land
(2) registered land where a right to be registered was acquired before 13 October 2003

Updated: December 2013

Update

This edition of the guide replaces the July 2013 edition. Section 4.2 has been amended to confirm that Crown land includes land owned by government departments.

Scope of this guide

This guide explains Land Registry’s approach to applications based on adverse possession for (1) first registration of unregistered land and (2) registration as proprietor of registered land where a squatter was in adverse possession for the requisite limitation period so as to have acquired a right to be registered as proprietor before 13 October 2003. It also explains the procedures for making such applications, and the options available to those served with notice of them.

It is aimed at conveyancers and you should interpret references to ‘you’ accordingly.

Practice Guide 4 deals with adverse possession applications in respect of registered land under the new regime set out in Schedule 6 to the Land Registration Act 2002.

1 Abbreviations and terms used

In this guide:

‘conveyancer’ means an authorised person within the meaning of s.18, Legal Services Act 2007 who is entitled to provide the conveyancing services referred to in paragraphs 5(1)(a) and (b) of Schedule 2 to that Act, or a person carrying out those activities in the course of their duties as a public officer. It also includes an individual or body who employs or has among their managers such an authorised person who will undertake or supervise those conveyancing activities (r.217A, LRR 2003)

‘Fee Order’ means the current Land Registration Fee Order

‘LA 1980’ means the Limitation Act 1980, as amended

‘LRA 1925’ means the Land Registration Act 1925 as amended

‘LRA 2002’ means the Land Registration Act 2002 as amended

‘LRR 2003’ means the Land Registration Rules 2003 as amended

‘squatter’ is used to refer to anyone in, or claiming to be in, adverse possession

‘the owner’ means the person with the documentary or paper title

‘the tribunal’ means the Land Registration division of the Property Chamber, First-tier Tribunal.

2 Introduction

Where land is unregistered, a squatter can acquire title by their adverse possession over a period of time. This is through a combination of the positive effect of the adverse possession giving them title and the negative effect of the LA 1980, which extinguishes the documentary or paper title1.

1 LA 1980, s.17.

Under the law as it was prior to the coming into effect of the LRA 2002 on 13 October 2003, the provisions of the LA 1980 applied in the same manner to registered land as unregistered land except that the estate of the registered proprietor, instead of being extinguished at the end of the appropriate limitation period, was deemed by section 75(1), LRA 1925 to be held on trust for the squatter2. This form of trust was abolished under the LRA 20023 but paragraph 18(1) of Schedule 12, LRA 2002 provides that a squatter who is already a beneficiary under such a trust has a right to be registered as proprietor. So these transitional provisions in paragraph 18 of Schedule 12, LRA 2002, can only operate where the land was registered as at 13 October 2003 and there had been adverse possession for the appropriate limitation period by that date.

2 This gave the squatter the right to apply for registration in place of the existing registered proprietor: LRA 1925, s.75(2); Central London Commercial Estates Ltd v Kato Kagaku Co Ltd [1998] 4 All ER 948, 958-959.

3 There is no equivalent to s.75(1), LRA 1925 in the LRA 2002.

This guide covers both the adverse possession of unregistered land and the transitional provisions in paragraph 18 of Schedule 12, LRA 2002.

Note that an application for registration under paragraph 18 of Schedule 12, LRA 2002 is not affected by the new regime in respect of registered land detailed in Practice Guide 4 – Adverse possession of registered land. However a squatter who is able to apply under paragraph 18 of Schedule 12, LRA 2002 may also be able to apply under the new regime. Where both applications are made, the squatter will be asked to specify which is to proceed first.

The title plans of all registered titles show only the general position of the boundaries, unless they are shown as having been determined as exact boundaries pursuant to s.60, LRA 2002. This means that it is possible for an area of land to be within a registered title, even though it falls outside the red edging on the title plan. Conversely, it is possible for an area of land not to be included within the registered title, even though it is within the red edging on the title plan. In other words, it is not possible for Land Registry to define the precise position of the boundary in question. Public Guide 19 – Title plans and boundaries provides further information on this.

If it turns out that the squatter, in fact, has documentary title to the land and what is really required is an alteration to the squatter’s and/or the squatter’s neighbour’s title plan to show the general boundary more accurately, then an application based on adverse possession is not appropriate. In these circumstances, the squatter should consider an application to alter either:

  • their title plan

  • their and their neighbour’s title plan, or

  • their neighbour’s title plan

to show the boundaries more accurately.

Such an application would need to be made in form AP1 identifying the title(s) to be altered. The applicant would need to make clear the nature of the alteration sought and the basis for the claim. A fee would be payable assessed under the Fee Order.

The determined boundary procedure, as discussed in Public Guide 19, could also be considered.

3 Adverse possession – the essentials

You must show that:

  • 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, and

  • 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 (see section 4 The limitation period).

3.1 Factual possession

In Powell v McFarlane4, Slade J said:

"Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think 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."

4 (1979) 38 P & CR 452. The House of Lords approved this statement of the law in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30.

Where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.

3.2 The intention to possess

What is required is "not an intention to own or even an intention to acquire ownership but an intention to possess"5. This means "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 if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow"6.

5 Buckinghamshire County Council v Moran (1988) 86 LGR 472, per Hoffman J, approved by House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30.

6 Powell v McFarlane (1977) 38 P & CR 452, 471-472, per Slade J, approved by House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30.

Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the acts making up that factual possession but this deduction will not always be made, as Slade J explained in Powell v McFarlane7:

"In my judgement it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner."

7 (1979) 38 P & CR 452, 476, cited with approval by Lord Hutton in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2002] 3 All ER 865; [2002] 3 WLR 221; [2003] 1 P&CR 128.

Use of land for access purposes is an example of an equivocal act. Such use over time might give rise to an easement by prescription but is not, by itself, sufficient to establish an intention to possess the land.

3.3 Possession without the owner’s consent

In Buckinghamshire County Council v Moran8, Slade LJ explained:

"Possession is never ‘adverse’ within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner of the paper title."

8 [1990] Ch 623, 636.

4 The limitation period

4.1 The normal period

Section 15(1), LA 1980 states:

"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."

The right of action accrues, and so the limitation period starts to run, from the start of the adverse possession9.

9 LA 1980, Sch 1, paras 1 and 8.

4.2 Extended periods

The time limit of 12 years is extended to 30 years for the Crown (which includes land owned by government departments10). This then is the relevant limitation period when the owner is a company that has been dissolved; the property of such a company vests in the Crown or one of the Royal Duchies as bona vacantia11. You should, therefore, carry out a company search where the owner is a company.

10 LA 1980, s.37(3); see Adverse possession (2nd edn) by Jourdan and Radley-Gardner, paras 14.05 and 14.06.

11 Companies Act 2006, s.1012. If time starts to run against a company which is then dissolved before the 12 years have expired, the limitation period will become 30 years from the start of the adverse possession.

The limitation period is 30 years for any spiritual corporation sole (bishops, vicars and certain other office holders in the Church of England)12. The 12-year period applies, however, to corporations aggregate, such as the Church Commissioners, a diocesan trust, or one of the Oxford or Cambridge colleges. Where the land is foreshore owned by the Crown, the period is 60 years13. The normal 12-year period applies to foreshore owned by parties other than the Crown.

12 LA 1980, Sch 1, para 10.

13 LA 1980, Sch 1, para 11.

The normal limitation period may also be prolonged by disability of the person entitled to recover the land14, by fraud or deliberate concealment of a cause of action, and by mistake15. A person is to be treated as under a disability while an infant (ie under the age of 18), or of unsound mind16. We shall assume that none of these factors apply unless the evidence indicates otherwise.

14 LA 1980, s.28.

15 LA 1980, s.32.

16 LA 1980, s.38(2).

Where the land is held on trust the estate of the trustees continues, even after the expiry of the limitation period against them, until the rights of action of all the beneficiaries have been barred17. Where there is some indication that trustees hold the land on trust for beneficiaries other than themselves, we are unlikely to be able to register with anything other than a qualified title unless the squatter can establish details of the trust and can prove that the rights of action of all the beneficiaries have been barred. Arguably the fact that the estate of the trustees continues in this way means that an application cannot be made where the limitation period relied on starts to run (i) after the death of the owner and while their estate is being administered, (ii) after the bankruptcy of the owner and while their property is being administered by the trustee in bankruptcy or (iii) (being a company) while the owner is being wound up. In each of these cases the owner is subject to a form of trust18.

17 LA 1980, s.18(3).

18 Ayerst v C & K (Construction) Ltd [1976] A.C. 167.

Time does not run against one beneficiary while another beneficiary is in possession of the land19.

19 LA 1980, Sch 1, para 9. See Earnshaw v Hartley [1999] 3 WLR 709 for the operation of this provision in the context of beneficiaries under an intestacy.

4.3 What stops time running?

For the purposes of the LA 1980, a period of adverse possession can be brought to an end by a signed, written acknowledgement of the owner’s title by the squatter20 and a written acknowledgement by the agent of the squatter is as effective as one signed personally by the squatter21. A written offer by the squatter to purchase the land from the owner is treated as an acknowledgement22.

20 LA 1980, ss29(2) and 30(1). An oral acknowledgement may be evidence that the squatter did not have the necessary intention to possess: Pavledes v Ryesbridge Properties Ltd (1989) 58 P & CR 459.

21 LA 1980, s.30(2).

22 Edginton v Clark [1964] 1 QB 367.

If the squatter remains in possession after the acknowledgement then time may start running again. But it will not start running if the acknowledgement results in a change in the relationship between the squatter and the owner (for example, the grant of a lease or a licence) so that the possession is no longer adverse.

Once the limitation period has expired, any subsequent acknowledgement does not revive the owner’s right of action23.

23 LA 1980, s.29(7).

A demand for possession from the owner does not stop time running24. Nor does the mere issuing of proceedings which are later dismissed25, or the making of related applications or objections to Land Registry26.

24 Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078.

25 Markfield Investments Limited v Evans [2001] 1 WLR 131.

26 J A Pye (Oxford) Ltd v Graham [2000] Ch 676 at 699-703; upheld on appeal to the House of Lords, where this question was not considered: [2002] UKHL 30.

4.4 Successive squatters

The squatter can pass on their interest in the land, for example to a purchaser or under a will or intestacy. The purchaser etc needs immediately to follow the original squatter into possession and hold for the remainder of the 12 years27.

27 LA 1980, Sch 1, para 8(2).

If a second squatter dispossesses the first, the second acquires the benefit of any time that had already run against the owner. However, the first squatter will retain the right to recover possession from the second, until the full limitation period has run from the date when they were dispossessed. So if B dispossesses A (the owner) in 1986 and is then dispossessed by C in 1994, A loses the right to recover possession from C in 1998 but B could still bring possession proceedings against C until 2006. One way a second squatter can show that they did not dispossess the first squatter is by obtaining a transfer of all the first squatter’s estate, right or interest in the land. However, such a transfer is not essential for the purposes of registration. Time stops running if a squatter abandons the land before the limitation period has expired. If a second squatter later takes possession time starts running afresh against the owner.

5 Making an application for registration on the basis of adverse possession

5.1 The application – where the land is unregistered

You must make the application on form FR128. Please note the need to attach to form FR1 a plan showing the land if the verbal description in panel 2 of form FR1 is not sufficient to identify the location and extent of the land on the Ordnance Survey map. It is rare for a plan not to be necessary in an adverse possession application.

28 LRR 2003, r.23.

In determining what class of title to apply for in form FR1, you should take account of the points made in section 6.4 Class of title.

We will return the FR1 to you if you fail to complete panel 12.

With form FR1 you need to send in form DL in duplicate listing the supporting documentary evidence,29 together with the appropriate fee under the Fee Order and the inspection fee – see section 6.1 Land Registry inspection.

29 LRR 2003, r.24.

5.2 The application – under paragraph 18 of Schedule 12, LRA 2002 – where the land is registered

You must make the application on form AP1,30 accompanied by the appropriate fee under the Fee Order. We will return as defective any application made in respect of land that was not already registered on 13 October 2003, and any or where there is no evidence of at least 12 years’ adverse possession by that date.

30 LRR 2003, r.13.

5.3 The supporting evidence

The supporting evidence will usually consist of one or more statements of truth or statutory declarations.

If a statement of truth is used it may be in form ST1. Form ST1 is designed to provide a framework for the information that must be included with an application where the land is unregistered or under paragraph 18 of Schedule 1231. Its use is not obligatory; any statement of truth that meets the requirements of r.215A, LRR 200332 will be acceptable, as will a statutory declaration. However, using form ST1 should help you to ensure that nothing has been overlooked. If you do not use form ST1, you need to provide all the information requested by that form – such as the dates the adverse possession started and finished, the acts relied on as establishing the necessary factual possession and intention to possess, and so on.

31 Form ST2 is the equivalent form for rentcharge applications.

32 See section 11 Appendix – statement of truth.

The statements of truth or statutory declarations should be factual and, ideally, the person making the statement or declaration will use their own words rather than language copied from precedent books. The person should expressly state how the facts are known to them, if this is not implicit in the statement or declaration. Information from third parties who have observed the position on the ground but may have no knowledge of the squatter’s intentions or dealings with the owner will usually carry less weight than the squatter’s own statement or declaration. However, statements of truth or statutory declarations from neighbours and other third parties, sent in with the squatter’s statement of truth or statutory declaration, may be useful as corroborative evidence.

We can never say what the outcome of an application will be before it is made. We can only make this decision after all the evidence has been produced by the applicant, we have received responses to requisitions and the time period relating to the notices we have served has expired. For this reason, and to avoid putting words into people’s mouths, please do not send us draft statements of truth or statutory declarations for approval.

5.4 Searches

If the owner is, or appears to be, a company, you should carry out an appropriate company search to find out whether or not the company has been dissolved and obtain details of any charges the company has entered into in respect of the land. You should lodge the results of the search with the application33.

33 See the comments about dissolved companies: section 4.2 Extended periods.

You should carry out a search of the index map to check whether or not the land is registered.

Where the land is unregistered, you should send in with the application land charges search certificates in respect of the squatter, the owner and any previous owners who can be identified.

Where the land is unregistered and there is a reasonable possibility of it being common land or town or village green, you will need to make a commons registration search and send in the response to the search34.

34 The Department for Environment Food and Rural Affairs has published a Guidance note on adverse possession of common land and town or village greens which is available on its website: www.defra.gov.uk (Land Registry does not necessarily share all statements of opinion as to the law that are expressed in the guidance note.)

5.5 Highway

We will not complete a first registration application based on adverse possession in so far as the land concerned lies within a highway maintainable at the public expense. The highway authority’s title to the surface35 cannot be lost by adverse possession, so the squatter has no estate in the surface36, the title to which can be registered37.

35 By virtue of the Highways Act 1980, s.263.

36 Nor, it would seem to follow, in the ground beneath or airspace above the surface.

37 R (on the application of Wayne Smith) v The Land Registry (Peterborough Office) [2010] EWCA Civ 200.

Where the first registration application relates to land within a highway that is not maintainable at the public expense, or the application is under paragraph 18 of Schedule 12, LRA 2002, we have to be satisfied that the factual possession did not constitute an illegal obstruction38. The point should be addressed in the application. We will normally serve notice on the highway authority before proceeding further. If the first registration application is completed so as to include the highway, the registered title will be subject to the public right of way39. If the application under paragraph 18 is completed, then the registered title, to the extent it includes the highway, will be subject to the public right of way and, if the highway is maintainable at the public expense, to the highway authority’s estate in the surface; both the right of way and highway authority’s estate will continue to operate as overriding interests40.

38 R (on the application of Wayne Smith) v The Land Registry (Peterborough Office) [2009] EWHC 328 (Admin).

39 This right will be an overriding interest: LRA 2002, Sch 1, para 5.

40 Secretary of State for the Environment v Baylis (Gloucester) Ltd (2000) 80 P & CR 324.

6 Land Registry’s response and registration

6.1 Inspection

Often the statements in statements of truth or statutory declarations, while not untrue, do not give a complete picture. For example, the person making the statement or declaration may have forgotten to mention a gate in a feature that appears, on the Ordnance Survey map, to bar access from adjoining land. Usually, therefore, we need to arrange for a surveyor from Ordnance Survey to inspect the land and to see their report before we can register with any class of title.

You, the squatter and the owner (if known) will be informed of the inspection before it takes place.

Where the land is unregistered, a fee under the Fee Order is payable by the squatter for the inspection and it must be paid with the fee for the application when form FR1 is lodged41. Where the land is registered, the current fee for the application payable under the Fee Order is taken to include the inspection fee.

41 Under the Fee Order the relevant provisions are articles 11 & 13(4).

6.2 Case law

We examine each application on its own merits. We bear in mind the case law on adverse possession but you need to remember that the court will have heard evidence and arguments on both sides while we will normally only hear the squatter’s version of events. And although the facts in any application may be superficially similar to those in a reported case, they are unlikely to be identical.

6.3 Notices

If, from the evidence we have seen, we believe it to be more likely than not that there has been adverse possession for the requisite period, we will give notice of the application to any person who, from the information available or from our local knowledge, may have an interest in the land. Where the land is registered, we will serve notice on the registered proprietor and on any registered chargee.

We will not complete a first registration application based on adverse possession in so far as the land concerned lies within a highway maintainable at the public expense. The surface of such highway vests in the highway authority42. It appears that, at least where the land is unregistered, title to the surface cannot be acquired by adverse possession43. We will notify the relevant highway authority if there is an evident possibility of highway maintainable at the public expense falling within the first registration application. It is of course advisable that you make enquiries of the highway authority before submitting an application for registration if it appears that the land may include highway.

42 Highways Act 1980, s.263.

43 London Borough of Bromley v Morritt (1999) 79 P & CR 536. Mummery LJ stated: "As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists."

6.4 Class of title

Generally, where the application is in respect of unregistered land, we will only register the squatter with an absolute title if we are satisfied that their adverse possession has barred the owner’s title. Usually this will only be so where:

  • we know what that title is, and

  • we are satisfied that the owner has consented to, or could have no valid grounds for objecting to, the squatter being registered as proprietor of the land.

In any other case we will only register with a possessory title. And we will not register even with this title in cases of real doubt. In part this is because where the squatter remains in possession for 12 years, we may convert a possessory title to absolute title44. It is also because we need to bear in mind the owner’s rights. It would be wrong to put the owner to the inconvenience of making an application for alteration if the evidence was such to leave real doubt as to whether the squatter had satisfied the requirements set out in section 3 Adverse possession – the essentials.

44 LRA 2002, s.62(4).

Where we complete an application under paragraph 18 of Schedule 12, LRA 2002, we will register the squatter with the same class of title as the registered proprietor.

6.5 Protective and other entries

A squatter, not being a purchaser for value, is bound by all subsisting legal and equitable rights45.

45 Re Nisbet and Potts’ Contract (1906) 1 Ch 386.

Where the owner’s title has not been deduced, we will usually make a protective entry in respect of restrictive covenants and, in areas where they are common, rentcharges. The entry will be along the following lines.

"The land is subject to such [restrictive covenants][and][rentcharges] as may have been imposed thereon or existed before [the date of first registration] and are still subsisting and capable of being enforced."

We will not, however, make a protective entry if we are satisfied, on the evidence available, that there is only a minimal risk that undisclosed restrictive covenants or rentcharges affect the land.

Where registers of adjoining titles have the benefit of appurtenant easements over the land being registered, we will enter notice of those easements in the register of the squatter’s new title.

When we complete an application under paragraph 18 of Schedule 12, LRA 2003, we will either register the squatter as proprietor of the existing title if the application relates to the whole of the registered title or, if it relates to part of an existing title, we will remove the land from that title and register the squatter as proprietor under a new title number. In the latter case, we will bring forward the subjective entries onto the new title.

6.6 Charges

The squatter’s title will not as a rule be subject to a charge by the owner created after the start of the adverse possession. Where the adverse possession is of unregistered land, the estate now being registered is the one that arose at the start of that adverse possession; at that point there was no charge so it cannot affect the squatter’s estate and they are entitled to be registered free from it. Where the adverse possession was of registered land, the right to be registered acquired or being acquired by the squatter is automatically an overriding interest46 and since 13 October 2003 the right to be registered has operated as an overriding interest where the squatter is in actual occupation47.

46 LRA 1925, s.70(1)(f).

47 LRA 2002, Sch 3, para 2. Up to and including 12 October 2006 it was also an overriding interest in its own right.

If the owner’s charge precedes the adverse possession, time may start to run against the chargee at the same time as it starts to run against the owner of the land, but only if the mortgage repayments cease with the adverse possession. Time will not start to run where there is a later mortgage repayment by the owner or squatter during the adverse possession48. Of course, where the adverse possession is of only part of the land charged – perhaps of a piece of the garden to a house – it is likely that the owner will have continued to make the repayments. The squatter’s title will then be subject to the charge49.

48 LA 1980, s.29(3).

49 There is no apportionment of the mortgage debt. To secure the release of the land from the charge, the squatter must pay the full amount outstanding: Carroll v Manek (2000) 79 P & CR 173.

We will serve notice of the application on any chargee who can be identified. You must specify whether you are seeking registration free from the charge or subject to the charge. If you seek registration free from the charge, the evidence you supply in support of the application needs to set out the grounds on which it is claimed that the squatter’s title is free from the charge. If you seek registration subject to the charge, any notice we serve on the chargee will make clear that we intend to enter the charge on the new title, or register the squatter as proprietor subject to the charge, unless the chargee expressly agrees to release their rights in the land.

7 Objecting to the squatter’s application

Anyone wishing to object to an application must deliver to the registrar a written statement signed by them or their conveyancer. It must state that the objector objects to the application, state the grounds for the objection and give the objector’s full name and an address for service. This must be a postal address, whether or not in the United Kingdom. Further postal, email or DX addresses may be given as well, but there can be no more than three addresses for service in total50.

50 LRR 2003, rr.19 and 198.

If an objection is received, then the application cannot be determined until the objection is disposed of, unless the registrar is satisfied that the objection is groundless51.

51 LRA 2002, s.73(5) & (6).

If the registrar decides that the objection is not groundless, notice of the objection must be given to the squatter or their conveyancer52. The registrar will then ask both parties whether they wish to negotiate and whether they consider that it may be possible to reach an agreement. If all parties respond positively, the registrar will allow them time to settle the matter by agreement. However, as soon as it becomes clear that the two sides are unable to reach an agreement, the registrar must refer the matter to the tribunal53. The registrar will do this immediately if the parties do not wish to negotiate.

52 LRA 2002, s.73(5).

53 LRA 2002, s.73(7).

The tribunal will then either set a date for hearing and determining the matter or direct one of the parties to start proceedings in court. Further details of the procedure to be followed and of the position as to costs will be supplied by it at that stage.

A squatter needs to take account of these points before making an application based on adverse possession. Even if the application does not lead to court proceedings or a hearing:

  • we will serve notice on the owner (if known), and

  • in limited circumstances the squatter may have to pay the costs incurred by the owner as a result of the squatter’s application54.

54 Where a dispute is resolved without a judicial determination, such as where the squatter withdraws the application for first registration, a person may request the registrar to make an order for costs where the conduct of the other party has been unreasonable in relation to the proceedings. The registrar will take into account all the submissions made and all the circumstances, including the conduct of the parties and the results of any enquiries the registrar has made: r.202, LRR 2003.

8 Leasehold matters

8.1 Adverse possession of leasehold land

As soon as the squatter takes possession of land that is leased, time runs against the tenant.

However, where the lease is unregistered Land Registry will refuse an application for first registration. This is because the tenant, although no longer able to recover possession of the land from the squatter at the end of the limitation period, can still surrender the lease to the landlord55.

55 Fairweather v St Marylebone Property Co Ltd [1963] AC 510. This is not the case where the lease is registered and the limitation period expired before 13 October 2003: Spectrum Investment Co v Holmes [1981] 1WLR 221; Central London Commercial Estates Ltd v Kato Kagaku Co Ltd 1998] 4 All ER 948.

Time does not run against the landlord until the lease expires – unless the adverse possession started before the lease, in which case time will continue to run against the landlord during the term of the lease.

Non-payment of rent before the lease expires is irrelevant. However, if a stranger wrongfully continues to receive the rent of leasehold land for 12 years, provided that the lease is in writing and not granted by the Crown and the rent is at least £10 a year, the landlord’s title becomes statute-barred and, where the estate in registered and the transitional provisions apply, the stranger becomes entitled to be registered56.

56 LA 1980, Sch 1, para 6.

8.2 Encroachment from leasehold land

8.2.1 Encroachment from leasehold land by a tenant squatting on an unregistered freehold estate and seeking first registration of a leasehold title

If the squatter is the lessee of adjoining land, the encroachment will usually be presumed to amount to an accretion to their lease. The additional land will be included in the surrender to the landlord when the tenancy ends57.

57 See Smirk v Lyndale Developments Ltd [1974] 3 WLR 91 and the authorities cited therein. The Court of Appeal approved what was said by Pennycuick V-C on the encroachment by a tenant point: [1975] Ch 317, 337. See also Tower Hamlets v Barrett [2005] EWCA Civ 923.

Where the applicant accepts that the presumption applies58, you must make the application on form FR159, completing panel 4 as to the appropriate leasehold class of title. It is necessary that there is more than seven years of the squatter’s documentary lease term still to run60.

58 You may include this information in the statement of truth or statutory declaration – see section 5.3 The supporting evidence.

59 LRR 2003, r.23.

60 LRA 2002, s.3(3).

Any notice (see section 6.3 Notices) which we may serve will make clear that the applicant is seeking to register title to the land on the basis that, having encroached for the relevant period under the LA 1980, the land is now included in the holding comprised in the lease, and will give details of that lease.

If the application is completed, we will enter a note in the property register to the effect that, although not originally within the extent demised by the lease, the land encroached on is now held for the term of, and as an accretion to, that lease.

8.2.2 Encroachment from leasehold land by a tenant squatting on an unregistered freehold estate and seeking first registration of a freehold title

Where the applicant claims that the presumption that the land forms an accretion to the lease does not apply, you must make the application on form FR161, completing panel 4 as to the appropriate freehold class of title. You should include all available evidence of the squatting tenant’s leasehold title (if this is unregistered) in addition to the supporting evidence referred to in section 5.3 The supporting evidence.

61 LRR 2003, r.23.

If evidence of rebuttal of the presumption is produced and the application proceeds, we will serve notice of the application on the landlord of the squatting tenant. The notice will refer to the presumption. If the landlord of the squatting tenant cannot be identified, we will only be able to consider registering with a qualified title. The qualification will be on the lines that the enforcement of any estate, right or interest adverse to, or in derogation of, the title of the proprietor’s title subsisting at the time of registration or then capable of arising is excepted from the effect of registration.

8.2.3 Encroachment from leasehold land by a tenant squatting on registered land which was registered on 13 October 2003, there having been 12 years adverse possession by that date, the tenant accepting that the presumption applies that the encroachment amounts to an accretion to their lease

Where the presumption that the encroachment amounts to an accretion to the lease applies, the tenant squatter cannot be the beneficiary under a trust under s.75(1), LRA 1925 and therefore cannot apply for registration under paragraph 18 of Schedule 12, LRA 2002. However, you can apply on form FR162 for first registration of the leasehold title they had acquired by 13 October 2003. This is provided that there is more than seven years of the squatter’s documentary lease term still to run63. It is also provided that the title has not been subsequently lost through registration of a registrable disposition of the registered estate for valuable consideration at a time when the leasehold estate was not an overriding interest64.

62 LRR 2003, r.23.

63 LRA 2002, s.3(3).

64 LRA 2002, s.29.

Any notice (see section 6.3 Notices) which we may serve will make clear that the applicant is seeking to register title to the land on the basis that, having encroached for the relevant period under the LA 1980, the land is now included in the holding comprised in the lease, and will give details of the lease. It will also make it clear that a notice in respect of the squatting tenant’s leasehold interest will be entered in the existing registered title.

If the application is completed, we will enter a note in the property register to the effect that, although not originally within the extent demised by the lease, the land encroached on is now held for the term of, and as an accretion to, that lease. Where the encroachment has been onto another tenant’s land and the squatter’s documentary lease is for a longer term than the term granted to this other tenant, the note will also make it clear that the land is held as an accretion to the squatter’s documentary lease, but only for the term of years demised by the lease to the other tenant on whose land the squatter has been squatting.

8.2.4 Encroachment from leasehold land by a tenant squatting on registered land which was registered on 13 October 2003, there having been 12 years adverse possession by that date, the tenant not accepting that the presumption applies that the encroachment amounts to an accretion to their lease

Where the applicant claims that the presumption that the land forms an accretion to the lease does not apply, and you wish to apply for registration under paragraph 18 of Schedule 12, LRA 2002, you must make the application on form AP165. You should include all available evidence of the squatting tenant’s leasehold title (if this is unregistered) in addition to the supporting evidence referred to in section 5.3 The supporting evidence.

65 LRR 2003, r.13.

If evidence of the rebuttal of the presumption is produced and the application proceeds, we will usually serve notice of the application on the landlord of the squatting tenant as well as on the registered proprietor of the title affected by the application. Any notice to the landlord will refer to the presumption that operates where a squatter is a tenant and will provide details as to why the tenant considers the presumption does not apply.

9 Protection prior to registration of the squatter

We will not register a squatter's title to unregistered land unless there is evidence of adverse possession for at least 12 years. Furthermore, in the meantime the squatter cannot lodge a caution against first registration (subject to what is said in the next paragraph). The squatter will be claiming to be the owner of a legal estate in land arising out of possession, and a caution cannot be lodged by virtue of ownership of a freehold estate in land66, which is the estate to which the squatter has title67. And we do not think that a squatter can claim to be entitled to an interest affecting a qualifying estate (the paper owner’s estate in land)68.This is not to say, however, that the squatter will necessarily lose the benefit of the adverse possession on first registration of the paper title. The first registration will be a mistake if it takes place after the paper title has been extinguished, and so the squatter should be able to apply for alteration69 (the registered title being closed) and for first registration of their own title70. If the first registration takes place before the paper title has been extinguished but the squatter stays in adverse possession, then once there has been 10 years adverse possession in total71, they can apply to be registered as proprietor of the registered estate under Schedule 6, LRA 2002.

66 LRA 2002, s.15(1)(a) & (3)((a)(i).

67 Rosenberg v Cook (1881) 8 QBD 162, 165, per Jessel MR.

68 LRA 2002, s.15(1)(b). S.132(3) provides that references to an interest affecting an estate “are to an adverse right affecting the title to the estate”: it is difficult to see how a squatter’s freehold estate, before the limitation period has expired, could be described as an adverse right affecting the paper owner’s title.

69 LRA 2002, Sch 4, para 5.

70 If the squatter is in actual occupation or the first proprietor has notice of the squatter's estate, the estate vested in the proprietor will be subject to that estate: LRA 2002, s.11(4)(b) & (c). Alteration of the register will not, therefore, prejudicially affect the proprietor's title. This means that the alteration will not constitute rectification, and so the proprietor will not be entitled to indemnity in the event that the title is closed: LRA 2002, Sch. 8, para 1(1)(a) & 11(2)(b).

71 So that Sch 6, para 1 is satisfied.

The position would seem to be different where the squatter is a successor in title to an earlier squatter who has transferred the possessory estate. If the squatter does not apply for first registration within two months of the transfer of the possessory estate, the title to this estate will revert to the transferor/first squatter, who will then hold it on a bare trust for the squatter72. The same reversion would appear to take place if the squatter does apply for first registration but the application is cancelled73. Thus the squatter will have a beneficial interest in this freehold estate, and so can, if they choose74, lodge a caution against first registration on the basis that they are entitled to an interest affecting a legal freehold estate in land75, as opposed to being the owner of such an estate. Note that this reasoning applies equally whether or not the documentary title has been extinguished by the time of the transfer of the possessory estate.

72 LRA 2002, ss.6 & 7.

73 Sainsbury's Supermarket Ltd v Olympia Homes Ltd [2005] EWHC 1235 at [67]-[71].

74 A person must not lodge a caution without reasonable cause; this duty is owed to anyone who suffers damage as a result of its breach: LRA 2002, s.77.

75 LRA 2002, s.15(1)(b). The freehold estate involved is the possessory estate which is the subject of the transfer by the earlier squatter.

The squatter's right to be registered under paragraph 18 of Schedule 12, LRA 2002, is a proprietary right and so is capable of being an overriding interest. It will not be lost as a result of the registration of a transfer or other registrable disposition for valuable consideration, provided the squatter remains in actual occupation at the time of the disposition76.

76 LRA 2002, s.29(2)(a)(ii); Sch 3, para 2. Whether there must also be actual occupation at the time of registration of the disposition for the right to be an overriding interest is not certain: Thomson v Foy [2009] EWHC 1076.

10 Enquiries and suggestions

If you have a particular concern that is not covered by this guide, please contact us in advance of the transaction – see Contact details. If the transaction is particularly complex, it may be better if you make your enquiry in writing at the Land Registry office that will process your application.

If you have any comments or suggestions about our guides, please send them to:

Central Operations Group
Land Registry
Trafalgar House
1 Bedford Park
Croydon CR0 2AQ

(DX 8888 Croydon 3)

You can obtain further copies of this and of all our guides free of charge from Customer Support (see Contact details) or you can download them from our website.

11 Appendix – statement of truth

A statement of truth is a method of providing evidence in support of an application. As a result of changes made by the Land Registration (Amendment) Rules 2008, it can be accepted for land registration purposes instead of a statutory declaration.

Its adoption by Land Registry follows the precedent set by the civil courts in accepting a statement of truth as evidence in place of an affidavit or statutory declaration.

11.1 Requirements

For land registration purposes, a statement of truth is defined as follows77.

  • It is made in writing.

  • It must be signed by the person who makes it (unless they cannot sign – see section 11.3 Statement of truth made by an individual who is unable to sign it).

  • It need not be sworn or witnessed.

  • It must contain a declaration of truth in the following form: ‘I believe that the facts and matters contained in this statement are true’.

  • If a conveyancer makes the statement of truth or signs it on someone’s behalf, the conveyancer must sign in their own name and state their capacity – see section 11.4 Signature by a conveyancer.

77 LRR 2003, r.215A.

11.2 Statement of truth signed by an individual who is unable to read

Where a statement of truth is to be signed by an individual who is unable to read, it must:

  • be signed in the presence of a conveyancer, and

  • contain a certificate made and signed by that conveyancer in the following form:

‘I [name and address of conveyancer] certify that I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who signed it or made [his] or [her] mark in my presence having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration.’

11.3 Statement of truth made by an individual who is unable to sign it

Where a statement of truth is to be made by an individual who is unable to sign it, it must:

  • state that individual’s full name

  • be signed by a conveyancer at the direction and on behalf of that individual, and

  • contain a certificate made and signed by that conveyancer in the following form:

‘I [name and address of conveyancer] certify that [the person making this statement of truth has read it in my presence, approved its content as accurate and directed me to sign it on [his] or [her] behalf] or [I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who directed me to sign it on [his] or [her] behalf] having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration.’

11.4 Signature by a conveyancer

Where a statement of truth is made by a conveyancer, or a conveyancer makes and signs a certificate on behalf of someone who has made a statement but is unable to read or sign it, the conveyancer:

  • must sign in their own name and not that of their firm or employer, and

  • must state the capacity in which they sign and where appropriate the name of their firm or employer.

11.5 Form ST1

Form ST1

Land Registry advisory policy

We offer advice to our customers through our publications and Customer Support information and through the day-to-day handling of applications.

We provide factual information including official copies of registers, title plans and documents, searches and details of our forms and fees.

We provide procedural advice to explain how the land registration system works and how to make applications correctly. This includes:

  • advice in advance of an application, where this is requested
  • where an application is defective, advice as to the nature of the problem and what options, if any, are available to put it right
  • an approval service for estate layout plans and certain other land registration documents.

There are limits to the advice that we will provide. We will not provide legal advice.

This means that:

  • we will not approve the evidence to be produced in support of a registration application before we receive the application
  • apart from procedural advice, we will not advise on what action to take
  • we will not recommend a professional adviser but can explain how to find one.

We provide advice only about real cases, not about theoretical circumstances. We will not express a view on questions where the law is complex or unclear except where the question arises on a live registration application.

In providing this factual information and procedural advice we will:

  • be impartial
  • recognise that others may be affected by what we say
  • avoid any conflict of interest.

Contact details

For customer enquiries and to request this publication in an alternative format please contact Customer Support at customersupport@landregistry.gsi.gov.uk or telephone 0844 892 1111, or 0844 892 1122 for a Welsh-speaking service, from Monday to Friday between 8am and 6pm. Calls cost 3p a minute on a BT standard tariff, in addition to the current set up/connection charge. Calls from other tariffs, service providers and mobile phones may cost more. We do not receive any revenue from these calls.

To obtain copies of this and all our other guides, free of charge:

Information in this guide

The information in this publication is for the purpose of providing general guidance about Land Registry's procedures and policies. It is intended only as a guide and does not cover every situation that may arise. It also does not limit Land Registry's ability to use its discretion when appropriate to do so, within the land registration legislation.

Remember

Please note that Land Registry may be unable to process applications that are incomplete or defective and your application will risk losing its priority if we have to return it to you – see Practice Guide 49 – Return and rejection of applications for registration for more information.

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