If you have been tending to land lying next to your property for some years, and are keen to find out your rights, then read on as property legal specialist, Surekha Gangakhedkar from law firm Vincents Laverys outlines your options.

First you need to find out if the land is ‘Registered' or ‘Unregistered' as the legal path you would need to take is determined by this.

If the plot is ‘Registered' land

Land owners can sometimes find that the plan held at the Land Registry showing the boundaries of their property does not reflect the true boundaries on the ground. 

This can occur when over the years adjoining land owners have swapped pieces of land or altered boundaries without going through the necessary legal paperwork. 

The simplest way to deal with this would be to arrange with the adjoining land owner to enter into Transfers that correct the position at the land registry.

This is not always possible and therefore an application for ‘possessory title' / ‘adverse possession' will have to be made to the Land Registry.

 In order to do this the land owner must be able to show:

-          continued usage of the land for at least 10 years

-           that the usage has not been interrupted, required consent or had any requirement for payment or entering into a licence. 

Once an application is made the Land Registry will then notify the registered owner.

If unopposed, then the land registry will amend the title register to show the new owner of the land.If opposed then the application for ‘possessory title' / ‘adverse possession' will be rejected unless there are very good reasons for the title to be changed which include:

-          that it would be wrong in all the circumstances not to register the person claiming the land as owner eg: where the claimant has built on the land mistakenly believing that he owns the land and the registered owner has acquiesced knowingly with the mistake

-          the person claiming is for some other reason entitled to be registered as the owner eg: the claimant is entitled to the land having been left it under a will or intestacy

-          if the ‘adversely possessed' land adjoins the claimants actual registered title and the  claimant has been under the mistaken but reasonable belief that he actually owned the ‘adversely possessed' land as long as land he actually owned was registered more than a year prior to the ‘adverse possession' application eg: where the boundaries as they appear on the ground and as they appear on the title plan do not match

If the application is rejected due to the opposition of the actual owner but the claimant still remains in occupation of the land continuously without any objection by the actual owner an application for ‘possession title' can be made again in 2 years.  The claimant will then be registered as the owner even if the actual owner again opposes the application.

The exceptions to this are:

-          the claimant was evicted by a court from the land

-          where a court orders that the actual owner is entitled to possession of the land

-          the claimant is a defendant in court proceedings for possession of the land


If the plot is ‘Unregistered' land

Attempting to register ownership of land that is not yet registered and without documentary evidence of ownership can only be considered if certain elements exist.  The final decision as to whether the land is registered in the claimants name is at the discretion of the land registry as is the type of title you receive ie: ‘absolute title' or ‘possessory title'.

There are 4 essential elements that must be met for the land registry to consider the registration:

1)    The claimant must have factual possession of the land.

This means that the claimant must have control over this land in such a way as to deal with the land as one would expect to deal with it if one actually owned it.  Land being fenced off is usually good evidence of this although not conclusive.

2)    The claimant must intend to possess the land.

This can be shown by using the land exclusively as one's own.  Just using land as an access - way is usually insufficient to claim title.

If the land is subject to a public right of way no claim for the land can be made.

3)    The land must be used without the owner's consent.

If any payments are made to use the land or any agreements or licences entered into    there will be no ‘adverse possession' as the land is used with the owners consent.

4) The above conditions must have been met by the claimant and any predecessors for at least 12 years prior to an application for ‘possessory title' being made.

The land in question can be passed on by the claimant to a purchaser or even under a will or intestacy.  The purchaser or the person who is passed title under a will or intestacy needs to possess and hold the land for the remainder of the twelve years and benefits from any time that has already accrued.  If the land is abandoned and not possessed under the above rules then a new claimant would have to start the time running again from the start.

The application to register land with ‘possessory title' is made using statutory declarations.  Declarations made by neighbours or other third parties with knowledge of the land can also be forwarded but will only corroborate the main declaration made by the claimant.

Until the application is submitted the land registry will not be able to advise on what the outcome of the application may be.  Each case is judged on its own facts and evidence.  The land registry will also decide on the class of title that will be registered ie: ‘possessory' or ‘absolute' title.  It is possible at a later stage for the land registry to upgrade possessory title to absolute title if it becomes clear that the actual owners title to the land has been barred.  If the land registry have serious doubts about the actual owners title then no title will be registered in the claimants favour.  It is at the Land Registry's discretion.