Adverse Possession and Prescriptive Easements Over Unregistered Land

Rights over land can be acquired over time by individuals through adverse possession and prescriptive easements. It is important that land owners are aware of what can give rise to these claims as they may be dispossessed of land or be legally forced to grant certain use of it to another. All parties to such claims should seek expert legal advice.

Adverse Possession of Unregistered Land

Where an individual retains possession of land belonging to someone else without their consent, they are said to be in adverse possession. In some instances, they may become entitled to register the land as theirs where they have been in adverse possession for a fixed period, generally 12 years. The reasoning behind this law is to ensure certainty about legal title to land and protect innocent third parties who may wish to purchase it.

The circumstances giving rise to legal title for an adverse possessor of land differ depending on whether the land is registered or unregistered.  In addition, from 2003 there has been much greater protection against registered land being lost to adverse possessors. 

For adverse possession to arise in relation to unregistered land and for an application to register legal title to be successfully granted, the adverse possessor must provide evidence of the following:

1. $      Factual possession of the land – possession must be exclusive in a manner in which an occupying owner would be expected to deal with it.
2. $      Necessary intention to possess the land – an intention to acquire ownership or own will not suffice, only an intention to possess.
3. $      Possession is without the owner’s consent – cannot be enjoyed under a lawful title.
4. $      That the above three conditions have been true of the squatter and any of his predecessors for a period of at least 12 years – the limitation period starts to run from the start of the adverse possession.

The law has recently changed in respect of timeframes where land was registered, and you should contact the firm to obtain specific advice on your particular circumstances.

Prescriptive Easements Over Unregistered Land

One of the ways in which an easement, a right of way, can be acquired is by prescription. In this situation there is no grant, either express or implied, nor is there a need for a sale of part.

For instance, where a person uses a neighbour’s land without their express consent as a shortcut to access a garage for a sufficiently long period, they may become entitled to an easement over that land. Such an easement can be acquired either at common law, by lost modern grant or under the Prescription Act of 1832.

Under the common law, four conditions must be satisfied by users claiming prescriptive easements:

1. $      That the use is as of right, without force (unchallenged by the legal owner), without secrecy (done so openly) and without permission of the legal owner.
2. $      The user must be a claiming an easement for or on behalf of a freehold owner against another freehold owner.
3. $      The use must be continuous and uninterrupted (although not necessarily constant) for at least 20 years.
4. $      The right claimed must be one that can be lawfully granted (not one that is contrary to law).

It is important to note the purchasers of unregistered land are bound by legal interests that arise such as prescriptive easements.

If you are claiming or are faced with claims for adverse possession or prescriptive easements, the advice of an experienced solicitor is essential, contact p.flaherty@osmondandosmond.co.uk or will@osmondandosmond.co.uk or by telephone on 0207 583 3434.