Land Registry update
Land Registry update: adverse possession of registered land
Charlotte Takeuchi and Christopher Day describe the application procedure for adverse possession of registered land under Schedule 6 of the Land Registration Act (LRA) 2002.1
About the authors
Charlotte Takeuchi and Christopher Day are Assistant Land Registrars.
Before the coming into force of the LRA, on 13 October 2003, adverse possession claims in relation to both registered and unregistered land were subject to the Limitation Act (LA) 1980. The acts required to support a claim of adverse possession were explained by reference to case-law ; thus, in order to establish a claim to have acquired a title by way of adverse possession, the applicant or ‘squatter’ must have demonstrated:
- factual possession of the land without the owner’s consent; and
- sufficient intention to possess the land such as by acts of use/maintenance; and
- all the above for a continuous 12-year period (longer in relation to certain types of land/owners of land).
All the above criteria continue to apply in certain circumstances, for example, where the land concerned is unregistered. Further information can be found in Practice guide 4: adverse possession of registered land.2 These situations are outside of the scope of this article, which looks solely at the ADV1 procedure.
See also Adverse possession of registered land: a guide. [Readers should note that] this article does not replace the need to consider Land Registry guidance set out in Practice Guides 4 and 5 before making any adverse possession application
Section 96 of the LRA disapplied sections 15, 16 and 17 of the LA and introduced an entirely new system of applications for adverse possession of registered land. The new system required the acts of adverse possession to have been carried out for a period of at least 10 years (longer in relation to certain types of land) to entitle the applicant to apply to be registered as proprietor of the registered estate in place of the current proprietor.
The relevant application form is ADV1.3 The form must be accompanied by a statutory declaration or statement of truth made by the applicant not more than one month before the application is lodged, together with any other relevant supporting evidence to substantiate the claim. A form ST1 may be completed for the statement of truth and is a useful guide as to the information needed, for example, by rule 188 of the Land Registration Rules (LR Rules) 2003 SI No 1417 and by rule 215A of the LR Rules.4
In the case of a first application, an applicant must show that they (and any relevant predecessors in title) have been in adverse possession for at least 10 years ending on the date of the application. The applicant does not have to be in adverse possession personally for the entire requisite period provided they are a successor in title to a previous applicant. For example, if A is in adverse possession for five years and then transfers their interest to B, who continues in adverse possession for a further five years so the 10-year period is continuous, B is entitled to apply using a statement of truth from A and B for the total period.
However, if B evicted A, then B would not be entitled to apply at the end of their five years. An application made on this basis should confirm how title has passed between the applicants.
Even where an applicant has been in adverse possession for a 10-year period and otherwise fulfils the criteria, the LRA prescribes four circumstances where no application may be made. These are as follows.
- Where the applicant is a defendant in proceedings involving possession of the land.
- Where a judgment for possession has actually been given against the applicant in the last two years.
- During any period where the registered proprietor is an enemy under the Limitation (Enemies and War Prisoners) Act 1945 or is detained within enemy territory (or 12 months following the end of such period).
- Where the registered proprietor has a mental or physical impairment which adversely affects their decision-making or communication ability.
It is important when completing their application that the applicant considers what their position will be if the registered proprietor serves a counter-notice to the application requiring the Land Registrar (‘ the registrar’ ) to deal with the application under LRA Schedule 6 paragraph 5. If a counter-notice is served, then the applicant is entitled to be registered only if any of the three conditions set out in paragraph 5 are met. The applicant needs to identify if they wish to rely on one or more of the conditions in the ADV1 and ensure that the statutory declaration or ST1 sets out the relevant facts in support of this.
If, on receipt of a valid application, the registrar decides from the evidence supplied that it is more likely than not that the applicant is entitled to apply for title based on claimed adverse possession, then notice(s) will be served.
Paragraph 2 of Schedule 6 to the LRA specifies certain parties that notice of an ADV1 application must be served on. These parties will have the opportunity to object and/or serve counter-notice within a 65-business-day notice period. If no objection is received and no counter-notice is served, the applicant will be registered in place of the registered proprietor.
Land Registry may also, at its discretion, serve notice of an ADV1 application on additional parties not specified in paragraph 2. However, these parties will have the opportunity only to object to an application, and must do so within a 15-business-day notice period.
In the event the registrar is required to deal with the application pursuant to the provisions of paragraph 5, then in order for the application to proceed the applicant will need to demonstrate an arguable case that at least one of the three conditions set out in paragraph 5 has been met.
This condition is based on the principles of proprietary estoppel. The applicant must show it would be unconscionable, because of an equity by estoppel, for the registered proprietor to attempt to dispossess the applicant and the applicant ought to be registered as proprietor. The applicant will need to evidence the claim that: - the proprietor’s actions incited or encouraged the applicant to believe they owned the land; and - the applicant acted to their detriment to the knowledge of the proprietor and, as a result, it would be unconscionable for the proprietor to deny the applicant their rights.
Examples that may satisfy this condition are that the applicant is entitled under the will or intestacy of the deceased proprietor or that the applicant contracted to buy the land and paid the purchase price, but the legal estate was never transferred to them. The applicant is a beneficiary under a bare trust, and so can still be in adverse possession.
This ground may be relied on where the applicant has been in adverse possession of land abutting their own under the mistaken but reasonable belief that they owned it. There must have been no determination of the relevant boundary pursuant to LRA s60, and the land that is the subject of the application must have been registered for at least one year before the date of the application.
When serving notice of an ADV1 application on any of the parties set out in paragraph 2, Land Registry will include a form NAP for recipients to use when responding to us.5 A recipient of a notice has the following options:
- consent to the application;
- not respond to the notice;
- object to the application; or
- serve counter-notice.
A recipient may both object and serve counter-notice should they wish.
Land Registry will proceed with the application, registering the applicant as the proprietor of the land in place of the current registered proprietor.
Section 73 of the LRA gives anyone the right to object to an application; so anybody, whether or not the recipient of notice, may object to an ADV1 application. However, only a party specified in paragraph 2 can serve counter-notice. All objections must comply with the requirements of rules 19 and 198 of the LR Rules.
Objections are considered on their individual merits when received. If an objection is considered ‘groundless’, then it will not affect the application. However, if it is considered ‘non-groundless’, then notice of the objection will be served on the applicant and our dispute process will commence. If no agreement is reached between the applicant and objector, then disputed applications will be referred to the Land Registration division of the First-tier Tribunal (Property Chamber) for judicial resolution.
For more information regarding our disputes procedure and potential costs consequences, please see Practice guide 37: Objections and disputes, a guide to Land Registry practice and procedures and Practice guide 38: costs.6
If just a counter-notice is served, the registrar will then consider whether the applicant is relying on any of the three conditions set out in paragraph 5. If the applicant does not rely on any of the three conditions, the application will be rejected. If the applicant is relying on one of the three conditions in their application, then the registrar will consider whether or not the evidence submitted shows an arguable case for the relevant condition(s) being met. If the registrar is satisfied that an arguable case has been made out, we will contact the party who served the counter-notice. They will then be given the opportunity to object to the application on this ground. If the objection is ‘non-groundless’ and no agreement is reached between the parties, the matter will be referred to the tribunal.
If no counter-notice is served, the paragraph 5 conditions would not form part of Land Registry’s reasoning when deciding whether an applicant is in adverse possession of the land.
Where an application is rejected, the applicant will be able to reapply to be registered as proprietor two years after the date of rejection, under LRA Schedule 6 paragraph 6, provided they have remained in adverse possession of the land.
- See also Adverse possession of registered land: a guide, available at: http://tinyurl.com/z998fue
1 This article does not replace the need to consider Land Registry guidance set out in Practice Guides 4 and 5 before making any adverse possession application. Practice guide 4: adverse possession of registered land, available at: http://tinyurl.com/h5pgc2q and Practice guide 5: adverse possession of (1) unregistered and (2) registered land where a right to be registered was acquired before 13 October 2003, available at: http://tinyurl.com/jp4hxrb
2 Available at: http://tinyurl.com/h5pgc2q
3 Application for registration of a person in adverse possession under Schedule 6 to the Land Registration Act 2002, available at: http://tinyurl.com/hlmhoq8
4 Statement of truth in support of an application for registration based upon adverse possession, available at: http://tinyurl.com/zlv2wdz
5 Notice to the registrar in respect of an adverse possession application, available at: http://tinyurl.com/hm9n32r
6 Available at http://tinyurl.com/ph73bfo and at: http://tinyurl.com/hxnzbnb respectively