Claiming Adverse Possession

Claiming adverse possession: what if the land is subject to a tenancy?

Adverse possession, often referred to as 'claiming squatter's rights', is the legal principle that can allow you to claim ownership of land that you do not legally own. There are certain conditions to be satisfied. In simple terms, you need to have occupied the land without the owner's permission for an extended period of time.

But what happens when the land you are adversely possessing is the subject of a lease? The tenant might be nowhere to be seen, and you might have used and occupied the land for 10+ years, but does the existence of the lease mean that your 10 years of possession counts for nothing?

First things first. What conditions do you need to satisfy in order to successfully claim adverse possession?

In a nutshell, you need to be able to produce evidence of the following:-

1. Possession of the land: you must be in physical control of the land, dealing with it as an owner would, and excluding all others. Fencing off the land, resurfacing the land, building on the land; these are all classic acts of ‘factual possession’.
2. Intention to possess: you must have the intention to possess the land to the exclusion of the paper owner, rather than for example, being none the wiser as to your encroachment. Put simply, you need to know what you are doing and be treating the land as your own.
3. The possession must be ‘adverse’: your possession must be without the owner's consent or permission.
4. Extended period of occupation: the possession must be uninterrupted for a minimum statutory period of either 10 or 12 years (10 years for registered land, 12 years for unregistered land).

In the case of registered land, the registered owner will be notified of the adverse possession application and have an opportunity to object.

So back to the central question. If the land that you have been using to the exclusion of others for the past 10 years is the subject of a lease (albeit the tenant is nowhere to be seen), does the fact that the land is leasehold land get in the way of you claiming ownership of the land?

The answer is, yes, you can apply for ownership of the land. However, what you will be doing is dispossessing the leaseholder; you will not be dispossessing the freehold owner. So what will happen in practical terms is that you will step into the shoes of the leaseholder and acquire the benefit of the remainder of the term of the lease. So you might acquire a 10 year, 20 year, 30 year, or even longer leasehold interest in the land. But what you will not automatically be acquiring is ownership of the freehold interest in the land. The freeholder’s position is, to an extent, shielded by the lease.

It is still possible to dispossess the freehold owner and to acquire freehold ownership but the ‘10 year adverse possession clock’ will not start to tick in relation to the freeholder’s ownership of the land until after the expiry of the lease that you have acquired. Put another way, you may well achieve a mini victory in the sense of acquiring the leasehold interest in the land, but you will have to remain in possession for a further period of 10 years beyond the expiry of the lease in order to acquire the freehold title. So you sit tight, wait for the lease to expire, wait a further 10 years, and then seek ownership of the freehold interest. One step at a time if you like; lease first, freehold second. It is a long old process.

Summary

The consequences of adverse possession can be seen, by some, as a form of penalty for owners who "sleep on their rights" and overlook their ownership of land. You snooze, you lose. That might seem a harsh description but, in reality, that can often be the uncomfortable outcome for a land owner.

If you have any queries in relation to adverse possession, or if you are concerned about third parties occupying your land, the Property Disputes Team at Hughes Paddison can assist. Please contact Andrew Turner on 01242 586 841 or at aet@hughes-paddison.co.uk.