Expert Opinion: Adverse Possession Woes
Adverse possession is something that conveyancers come across regularly – it is not that unusual to find that the property being sold includes some ‘extra’ land not included in the registered title. So, whether we are acting for buyer or seller, we do need to be aware of the basic rules applying to adverse possession so that we can advise our clients correctly.
But the rules are very complicated. Twelve years adverse possession (as defined) gives title to unregistered land. But if the land being squatted on is registered, unless 12 years adverse possession can be proved as at 13 October 2003, then the provisions of the Land Registration Act 2002 (which came into force on that date) will apply – so three different sets of rules to think about.
The 2002 provisions reduce the required period of adverse possession of registered land to 10 years, but also make it very difficult to claim adverse possession if the registered proprietor objects. In such a case it can only be successfully claimed if:
(i) an equity of estoppel exists which makes it unconscionable for the proprietor to dispossess the squatter; or
(ii) the squatter is entitled to be registered for some reason other than adverse possession; or
(iii) there has been a reasonable mistake as to the location of a boundary.
None of these exceptions will apply to the classic case of a land-owner seeing a piece of unused land and simply taking it over.
The snag here is, that until we make an application to Land Registry to be registered, we will not know whether there will be an objection. In the recent case of Best v Curtis  EWLandRA 2015_0130, for example, a deceased proprietor’s son turned up 26 years after his mother’s death to object to a squatter’s registration!
It is standard practice in a case of adverse possession to require a statutory declaration from the seller as to possession of the land and an indemnity policy to support this. Do be careful here.
Whether in registered land or unregistered land do ensure that the statutory declaration does actually show adverse possession, as defined. To amount to adverse possession there must be proof that
(a) the squatter has factual possession;
(b) the squatter has the necessary intention to possess;
(c) the squatter’s possession is without the owner’s consent; and
(d) all of the above have been true of the squatter(s) for the prescribed period.
A statement of truth i.e Land Registry Form ST1 is preferable as the headings in the form should ensure that all these issues are addressed.
Policies must be used with care. They are intended to protect the squatter against any claim to the land by the true owner. They will not protect against a failed claim for registration of the title at Land Registry. Indeed, any such application will result in the policy being avoided if a claim on it is then made. It is a shield, not a sword – do advise the client to read the small print of the policy. Otherwise, if an application is made to register the title to the ‘extra’ land and this fails, a claim on the policy will fail as well – a classic double whammy.
Do take care with what amounts to factual possession of the land. What must be shown is that the squatter has dealt with the land as an occupying owner might have been expected to and that no-one else has used it. This is a question of fact – and squatters often fail: see, for example, Boot v Bromford Housing Association Limited  EWLandRA 2016_0193.
A different complication arose in Waters v Evans  EWLandRA 2015_0936. Here the squatter had erected a garage on the disputed land, but the owner claimed that as the land was subject to public rights of way, this prevented a claim to adverse possession. It is, of course, an offence to obstruct a highway, whether a Motorway or a public footpath. It had been held in R (on the application of Smith) v Land Registry  EWCA Civ 200 (CA) that adverse possession could be obtained of an adopted highway, and the Tribunal Judge held that it could also be obtained in respect of land that was an unadopted highway.
And the complications go on. In the Best case mentioned above, one of the points in issue was the meaning of Paragraph 12 of Schedule 6 to the 2002 Act. This basically states that a person is not treated as being in adverse possession of registered land whilst it is subject to a trust. Mr Curtis, the son of the deceased proprietor, claimed that as he was entitled to administer his mother’s estate that the land was accordingly subject to a trust, and so no claim could be brought for adverse possession. But Judge Elizabeth Cooke disagreed. Executors and administrators did not hold the deceased’s property on trust; they were treated by the courts as if they were trustees in some circumstances e.g. to hold them liable for breach of their duties, but they were not trustees in ‘any usual sense.’ In any event, Mr Curtis had taken out a grant after the 10 year period of adverse possession had been completed.
However, in the absence of the grant, a deceased’s assets vest in the Public Trustee; did not that mean that there was a trust in place to defeat the claim to adverse possession?
Again Judge Cooke thought not. The Public Trustee did not hold the deceased’s land on ‘trust’. The Administration of Estates Act 1925, provides (section 9(3) that the Public Trustee ‘has no duty, obligation or liability’ in respect of the property.
So do take care– there are lots of complications that might crop up in adverse possession situations. In the Best case, Mr Curtis in arguing the trust point had relied upon Ruoff & Roper, the leading textbook on registered land. What chance do conveyancers have if the leading textbook can get the law wrong?