Adverse Possession: Old Law vs New Law Explained

If you’re a landowner facing the challenge of a long-term occupier, a boundary dispute, or dealing with an unregistered parcel of land, it’s unhelpful that there are two different sets of rules for adverse possession.

The law changed with the Land Registration Act 2002, which came into force on 13 October 2003 and now provides landowners with more protection and a chance to object to a claim. However, there are still pitfalls.

We act for landowners, property investors, and landlords involved in adverse possession claims. If you’re unsure about which rules apply and the right steps to take, speak to our specialist property litigation solicitors. Our property litigation team act nationally and would love to help you.

What Is Adverse Possession?

Isn’t adverse possession just “squatters’ rights”? These terms are used interchangeably but they aren’t the same thing.

Squatting is the unauthorised occupation of your property. Squatting in residential buildings by people who enter and remain as trespassers has been a criminal offence since 2012.

Adverse possession involves a long period of uninterrupted use of your land, based on the premise that land shouldn’t be neglected or unused. Individuals who occupy your land and exercise exclusive control over it, and demonstrate an intention to possess it have the chance to acquire legal rights of ownership based on the passage of time.

If you’re a residential or commercial property owner, then it’s vital to protect yourself against adverse possession claims. The law on adverse possession has changed so you’ll need advice on which regime applies to your situation.

How Did the Old Law on Adverse Possession Work?

Under the old law, if a person had been in adverse possession of land continuously for 12 years, the landowner’s right to bring an action to recover the land was barred. For unregistered land, provided the claimant satisfied the criteria, the Limitation Act 1980 automatically extinguished the paper owner’s title. For registered land, provided the claimant satisfied the criteria, the registered proprietor’s estate was deemed to be held on trust for the squatter under the Land Registration Act 1925, giving the squatter the right to apply to be registered as proprietor.

The claimant had to demonstrate factual possession of the land, an intention to possess it, and that their possession was without the owner’s consent.

How Did the Land Registration Act 2002 Change the Rules?

The Land Registration Act 2002 (‘LRA 2002’) changed the rules to give landowners better protection.

A key change is that after 10 years’ adverse possession of registered land, the squatter may apply to be registered as proprietor, but critically, your title as registered owner is not automatically extinguished. Instead, HM Land Registry will notify you of the application and you have the opportunity to oppose it by serving a counter-notice. The 12-year limitation period under the Limitation Act 1980 continues to apply to unregistered land.

When Does the Old Regime Still Apply Today?

The new Act came into effect on 13 October 2003. If you have an occupant who can show 12 years’ adverse possession prior to that date, then the old rules still apply. They also apply if your land is unregistered.

Unregistered land is land that isn’t recorded at the Land Registry; this is typically land that hasn’t been transferred or sold for many years. Ownership details are recorded in documents called title deeds and don’t form part of the central registration system.

What Exceptions Let a Squatter Overcome a Counter-Notice?

A counter-notice lets you reject a claim for adverse possession unless a squatter complies with one of three exceptions.

1. The first is called equity by estoppel. This means that it would be unconscionable for you to dispossess the squatter because you encouraged or allowed them to believe they owned the land through your actions or conduct, and the squatter has acted to their detriment in reliance on that belief..

This could be spending money to upgrade or extend a property or secure the boundary of the land. Consequently, it’s unfair to now deny them a right to the land.

2. The second exception is that your squatter can show a different right to be registered as the legal owner other than adverse possession.

3. The third exception relates to boundary disputes., If the squatter owns land adjacent to yours and the exact boundary has not been formally determined, and the squatter (or a predecessor in title) reasonably believed for at least 10 years during the period of adverse possession that the disputed land belonged to them, the counter-notice can be overturned.

If a squatter can demonstrate one of these three exceptions to your counter-notice, then the Land Registry will record them as the new legal owner. The same applies if you don’t file a counter-notice objecting to their original application.

If you can challenge a squatter’s application because they don’t meet any of the exceptions, the Land Registry will reject their claim to legal title, but you must act to evict the squatter within 2 years. If you don’t, they can apply again and will be successful whether or not you oppose it.

What Must You Prove to Establish Adverse Possession?

The burden of proof to establish adverse possession lies with the person occupying the land and making a claim.

Key elements to establish adverse possession include:

• An occupier present without your consent and with exclusive control of the land. 
• They must have continuous possession for a period of at least 10 years (registered land under the new regime), or 12 years (unregistered land or under the old regime).
• They must demonstrate an intention to possess the land. This means an intention to exclude the world at large, including the paper owner, so far as reasonably practicable.

Improving the land or buildings or securing the perimeter are all ways a claimant may demonstrate their intention to possess.

If you own registered land that’s subject to an adverse possession claim, you won’t have any difficulty evidencing your legal title via Land Registry records. However, proving ownership of unregistered land is often more challenging, making you more vulnerable in an adverse possession claim.

Naturally, these claims are fertile ground for disputes. If you’re in an adverse possession dispute, then you’ll be invited to resolve the matter by negotiation in the first instance.

If you can’t agree, then the Land Registry will refer your case to the First-tier Tribunal. This also happens if there’s a dispute over a counter-notice and you challenge an exception that a squatter is relying on.

Tribunal outcomes aren’t guaranteed either way. The strength of your evidence and the exception a squatter relies on will shape the result.

How Can Landowners Protect Their Property From Adverse Possession Claims?

The new LRA 2002 undoubtedly offers land and property owners better protection than the old regime. However, the risk of adverse possession hasn’t entirely gone away, and you should take steps to protect yourself from possession claims.

Here’s what to do:

• Keep properties and land under close review, especially if they’re unoccupied. Regular inspections will identify unauthorised entry, trespassers, and unwanted possession early so you can act.
• Take prompt action to remove trespassers as soon as you find unwanted occupancy. The longer it goes on, the closer that occupant moves towards the 10-year period of adverse possession.
• Remember that eviction isn’t necessarily quick. As an alternative, consider formalising possession under a licence, which prevents a 10-year period of adverse possession from starting in the first place because the occupation is no longer without the owner’s consent.Regularise ill-defined or unclear boundaries both physically (walls or hedges) and legally, at the Land Registry.
• Get a boundary survey to define where your land starts and finishes, and lodge a boundary agreement at the Land Registry for extra legal clarity.
• Register unregistered land now rather than waiting for a sale or transfer. It’s much easier to define boundaries and prove your legal title once the land is registered.
• Keep your contact information updated on Land Registry records. It’s easy to overlook after an address change, and out-of-date details can delay or prevent your response to a hostile application.

As soon as you find a problem, take specialist legal advice. This will protect your position and legal rights whilst you work out what to do about your new occupants. If you’ve already received an application, you’ll need a prompt and informed response that complies with the stated time periods.

What Should You Do If You Receive a Land Registry Notice?

If you receive a Land Registry notice, contact a specialist property solicitor without delay; this will help protect your rights while you explore different options and remedies. Protracted disputes are harder to resolve and may incur higher costs.

You’ll need to respond to the notice by demonstrating that the claimant hasn’t provided all the requisite elements to support adverse possession. You can do this by filing an objection or serving a counter-notice. Alternatively, you can turn the tables and officially recognise the occupation, regularising the arrangement in a way that preserves your ownership status.

Frequently Asked Questions 

What Is the 10-year Rule for Adverse Possession?

Under the new regime, someone claiming adverse possession must demonstrate continuous and uninterrupted possession for a period of at least 10 years. This only applies to registered land. If the land is unregistered or the claimant has been in occupation before 13 October 2003, then the requisite period is 12 years.

How Long Do You Have to Occupy Land Before It Becomes Yours?

You must show continuous occupation for 10 years if the land is registered and the possession started after 13 October 2003. If the land is unregistered or the occupation started before 13 October 2003, and 12 years’ possession accrued before that date, the 12-year period applies. Even then, for registered land under the new regime, occupation alone doesn’t transfer ownership – the squatter must apply and navigate the notice and counter-notice procedure.

What Is the Shortest Time for Adverse Possession?

The shortest period for adverse possession is 10 years. To qualify, the land must be registered, occupation must be continuous and uninterrupted throughout that period, and the possession must have started after 13 October 2003. If any of these conditions aren’t met, the 12-year period under the old regime is likely to apply instead.

What Are the Requirements for Adverse Possession in the UK?

To claim adverse possession, the claimant must demonstrate three core elements: (1) factual possession of the land, meaning exclusive physical control; (2) an intention to possess the land in the claimant’s own name and to exclude the world at large, including the true owner; and (3) that possession was without the owner’s consent. These elements must have been satisfied continuously for the relevant qualifying period (10 years for registered land under the new regime, or 12 years for unregistered land). Satisfying these elements does not automatically transfer title -for registered land, the squatter must follow the statutory application procedure under Schedule 6 of the LRA 2002.

Protect Your Land From Adverse Possession With Specialist Advice 

If you own land or buildings, the new legislation does make it easier to defend yourself against a claim for adverse possession. However, there are still pitfalls for the unwary.

Adverse possession claims and disputes incur costs and can reduce a property’s value and marketability. It’s vital you obtain prompt legal advice to preserve legal ownership and protect your rights.

We are a team of specialist property solicitors providing practical and cost-effective advice on adverse possession claims. Our strategic solutions align with your commercial objectives, with clear options that are easy to understand.

If you’re involved in a claim for adverse possession, own unregistered land, or are worried about land boundaries, contact Helix Law today for a no-cost, no-obligation initial conversation. Our property litigation team have decades of experience dealing in matters like yours, and we’d be happy to help you.