Guidance

Practice guide 5: adverse possession of (1) unregistered land and (2) registered land where a right to be registered was acquired before 13 October 2003

Updated 18 September 2023

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Introduction

Where land is unregistered a squatter can acquire title by their adverse possession over a period of time. This is through a combination of the positive effect of the adverse possession giving them title and the negative effect of the Limitation Act 1980 which extinguishes the documentary or paper title (section 17 of the Limitation Act 1980).

Under the law as it was prior to the coming into effect of the Land Registration Act 2002 on 13 October 2003, the provisions of the Limitation Act 1980 applied in the same manner to registered land as unregistered land except that the estate of the registered proprietor, instead of being extinguished at the end of the appropriate limitation period, was deemed by section 75(1) of the Land Registration Act 1925 to be held on trust for the squatter. This gave the squatter the right to apply for registration in place of the existing registered proprietor: section 75(2) of the Land Registration Act 1925; Central London Commercial Estates Ltd v Kato Kagaku Co Ltd [1998] 4 All ER 948, 958-959. This form of trust was abolished under the Land Registration Act 2002 - there is no equivalent to section 75(1) of the Land Registration Act 1925 in the Land Registration Act 2002 - but Schedule 12, paragraph 18(1) of the Land Registration Act 2002 provides that a squatter who is already a beneficiary under such a trust has a right to be registered as proprietor. So, these transitional provisions in Schedule 12, paragraph 18 of the Land Registration Act 2002 can only operate where the land was registered as at 13 October 2003 and there had been adverse possession for the appropriate limitation period by that date.

This guide covers both the adverse possession of unregistered land and the transitional provisions in Schedule 12, paragraph 18 of the Land Registration Act 2002.

Note that an application for registration under Schedule 12, paragraph 18 of the Land Registration Act 2002 is not affected by the new regime in respect of registered land detailed in practice guide 4: adverse possession of registered land. However, a squatter who is able to apply under Schedule 12, paragraph 18 of the Land Registration Act 2002 may also be able to apply under the new regime. Where both applications are made, we will contact you to discuss the approach we will take to the applications. Our general aim would be to process any dispute arising out of the applications at the same time. When contacting you, we will also ask for confirmation as to which application should be treated as the first.

The title plans of all registered titles show only the general position of the boundaries unless they are shown as having been determined as exact boundaries pursuant to section 60 of the Land Registration Act 2002. This means that it is possible for an area of land to be within a registered title even though it falls outside the red edging on the title plan. Conversely, it is possible for an area of land not to be included within the registered title, even though it is within the red edging on the title plan. In other words, it is not possible for HM Land Registry to define the precise position of the boundary in question.

If the squatter has documentary title to the land and what is really required is an alteration to the squatter’s and/or the squatter’s neighbour’s title plan to show the general boundary more accurately, an application based on adverse possession is not appropriate. In these circumstances the squatter should consider an application to alter either:

• their title plan
• their and their neighbour’s title plan
• their neighbour’s title plan

to show the boundaries more accurately.

Such an application would need to be made in form AP1 identifying the title(s) to be altered. The applicant would need to make clear the nature of the alteration sought and the basis for the claim. A fee would be payable assessed under the current Land Registration Fee Order.

The determined boundary procedure could also be considered.

2. Adverse possession: the essentials

You must show that:

• the squatter has factual possession of the land
• the squatter has the necessary intention to possess the land
• the squatter’s possession is without the owner’s consent
• all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application (see The limitation period)

2.1 Factual possession

In Powell v McFarlane (1977) 38 P & CR 452, Slade J said:

“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”

The House of Lords approved this statement of the law in J A Pye (Oxford) Ltd v. Graham [2002] UKHL 30.

Where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.

2.2 The intention to possess

What is required is “not an intention to own or even an intention to acquire ownership but an intention to possess” (Buckinghamshire County Council v Moran (1988) 86 LGR 472, per Hoffman J, approved by House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30). This means “the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow” (Powell v McFarlane (1977) 38 P & CR 452, 471-472, per Slade J, approved by House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30).

Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the acts making up that factual possession but this deduction will not always be made, as Slade J explained in Powell v McFarlane ((1977) 38 P & CR 452, 476, cited with approval by Lord Hutton in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2002] 3 All ER 865; [2002] 3 WLR 221; [2003] 1 P&CR 128):

“In my judgement it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.”

Use of land for access purposes is an example of an equivocal act. Such use over time might give rise to an easement by prescription but is not, by itself, sufficient to establish an intention to possess the land.

2.3 Possession without the owner’s consent

In Buckinghamshire County Council v Moran ([1990] Ch 623, 636) Slade LJ explained:

“Possession is never ‘adverse’ within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner of the paper title.”

Note that neither this requirement nor any other principle of adverse possession prevents the possibility of a registered proprietor being in adverse possession of land falling within their registered title but also within another registered or unregistered title. In Rashid v Nasrulla [2018] EWCA Civ 2685, the Court of Appeal overruled the earlier approach in Parshall v Hackney [2013] EWCA Civ 240, where Mummery LJ had found that the owners of one of the properties were not in adverse possession “as their possession of the disputed land was referable to their registered title”.

3. The limitation period

3.1 The normal period

Section 15(1) of the Limitation Act 1980 states:

“No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

The right of action accrues, and so the limitation period starts to run, from the start of the adverse possession (Schedule 1, paragraphs 1 and 8 of the Limitation Act 1980).

3.2 Extended periods

The time limit of 12 years is extended to 30 years for the Crown (which includes land owned by government departments: section 37(3) of the Limitation Act 1980; see Adverse possession (2nd edition) by Jourdan and Radley-Gardner, paragraphs 14.05 and 14.06). This then is the relevant limitation period when the owner is a company that has been dissolved; the property of such a company vests in the Crown or one of the Royal Duchies as bona vacantia: section 1012 of the Companies Act 2006. (If time starts to run against a company which is then dissolved before the 12 years have expired, the limitation period will become 30 years from the start of the adverse possession.) You should therefore carry out a company search where the owner is a company.

The limitation period is 30 years for any spiritual corporation sole (bishops, vicars and certain other office holders in the Church of England) (Schedule 1, paragraph 10 of the Limitation Act 1980). The 12-year period applies, however, to corporations aggregate, such as the Church Commissioners, a diocesan trust, or one of the Oxford or Cambridge colleges. Where the land is foreshore owned by the Crown, the period is 60 years (Schedule 1, paragraph 11 of the Limitation Act 1980). The normal 12-year period applies to foreshore owned by parties other than the Crown.

The normal limitation period may also be prolonged by disability of the person entitled to recover the land (section 28 of the Limitation Act 1980), by fraud or deliberate concealment of a cause of action, and by mistake (section 32 of the Limitation Act 1980). A person is to be treated as under a disability while an infant (under the age of 18), or of unsound mind (section 38(2) of the Limitation Act 1980). We shall assume that none of these factors apply unless the evidence indicates otherwise.

Where the land is held on trust the estate of the trustees continues, even after the expiry of the limitation period against them, until the rights of action of all the beneficiaries have been barred (section 18(3) of the Limitation Act 1980). Where there is some indication that trustees hold the land on trust for beneficiaries other than themselves, we are unlikely to be able to register with anything other than a qualified title unless the squatter can establish details of the trust and can prove that the rights of action of all the beneficiaries have been barred. Arguably the fact that the estate of the trustees continues in this way means that an application cannot be made where the limitation period relied on starts to run:

• after the death of the owner and while their estate is being administered
• after the bankruptcy of the owner and while their property is being administered by the trustee in bankruptcy, or
• (being a company) while the owner is being wound up. In each of these cases the owner is subject to a form of trust (Ayerst v C & K (Construction) Ltd [1976] A.C. 167)

Time does not run against one beneficiary while another beneficiary is in possession of the land (Schedule 1, paragraph 9 of the Limitation Act 1980. See Earnshaw v Hartley [1999] 3 WLR 709 for the operation of this provision in the context of beneficiaries under an intestacy).

3.3 What stops time running?

For the purposes of the Limitation Act 1980 a period of adverse possession can be brought to an end by a signed, written acknowledgement of the owner’s title by the squatter: sections 29(2) and 30(1) of the Limitation Act 1980. An oral acknowledgement may be evidence that the squatter did not have the necessary intention to possess: Pavledes v Ryesbridge Properties Ltd (1989) 58 P & CR 459. A written acknowledgement by the agent of the squatter is as effective as one signed personally by the squatter: section 30(2) of the Limitation Act 1980. A written offer by the squatter to purchase the land from the owner is treated as an acknowledgement (Edginton v Clark [1964] 1 QB 367).

If the squatter remains in possession after the acknowledgement, then time may start running again. But it will not start running if the acknowledgement results in a change in the relationship between the squatter and the owner (for example, the grant of a lease or a licence) so that the possession is no longer adverse.

Once the limitation period has expired any subsequent acknowledgement does not revive the owner’s right of action (section 29(7) of the Limitaton Act 1980).

A demand for possession from the owner does not stop time running (Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078). Nor does the mere issuing of proceedings which are later dismissed (Markfield Investments Limited v Evans [2001] 1 WLR 131), or the making of related applications or objections to HM Land Registry (J A Pye (Oxford) Ltd v Graham [2000] Ch 676 at 699-703; upheld on appeal to the House of Lords, where this question was not considered: [2002] UKHL 30).

3.4 Successive squatters

The squatter can pass on their interest in the land, for example to a purchaser or under a will or intestacy. The purchaser or otherwise needs immediately to follow the original squatter into possession and hold for the remainder of the 12 years (Schedule 1, paragraph 8(2) of the Limitation Act 1980).

If a second squatter dispossesses the first, the second acquires the benefit of any time that had already run against the owner. However, the first squatter will retain the right to recover possession from the second, until the full limitation period has run from the date when they were dispossessed. So if B dispossesses A (the owner) in 1986 and is then dispossessed by C in 1994, A loses the right to recover possession from C in 1998 but B could still bring possession proceedings against C until 2006. One way a second squatter can show that they did not dispossess the first squatter is by obtaining a transfer of all the first squatter’s estate, right or interest in the land. However, such a transfer is not essential for the purposes of registration. Time stops running if a squatter abandons the land before the limitation period has expired. If a second squatter later takes possession time starts running afresh against the owner.

4. Making an application for registration on the basis of adverse possession

4.1 The application: where the land is unregistered

You must make the application on form FR1: rule 23 of the Land Registration Rules 2003. Please note the need to attach to form FR1 a plan showing the land if the verbal description in panel 2 of form FR1 is not sufficient to identify the location and extent of the land on the Ordnance Survey map. It is rare for a plan not to be necessary in an adverse possession application.

In determining what class of title to apply for in form FR1, you should take account of the points made in Class of title.

We will return the form FR1 to you if you fail to complete panel 12.

With form FR1 you need to send in form DL in duplicate listing the supporting documentary evidence: rule 24 of the Land Registration Rules 2003. You also need to send the appropriate fee under the Fee Order and the inspection fee – see Inspection.

In line with Direction: Documents to be delivered with a first registration application – Lost deeds and adverse possession only certified copies of form ST1, form ST2, statutory declarations and other evidence should be lodged. If any originals are lodged they will be scanned and destroyed.

4.2 The application - under Schedule 12, paragraph 18 of the Land Registration Act 2002 - where the land is registered

You must make the application on form AP1: rule 13 of the Land Registration Rules 2003. You must also send the appropriate fee under the current Land Registration Fee Order (see HM Land Registry: Registration Services fees). We will return as defective any application made in respect of land that was not already registered on 13 October 2003, and any where there is no evidence of at least 12 years’ adverse possession by that date.

4.3 Completing forms FR1 and AP1

Please note that forms FR1 and AP1 were amended on 1 August 2022 by the Land Registration (Amendment) Rules 2022 to require additional information to be provided when an application is made to register an overseas entity as proprietor of a freehold estate in land or a leasehold estate in land granted for a term of more than seven years from the date of the grant, including where the application is made on the basis of adverse possession. This information is required by the Economic Crime (Transparency and Enforcement) Act 2022 which came into force on 1 August 2022. The pre-commencement version of these forms can be used up to 31 October 2023 but must include the overseas entity ID for the applicant. For more information, please see practice guide 78: overseas entities.

If the applicant is an overseas entity, their overseas entity ID issued by Companies House must be provided. You cannot make your application unless the overseas entity has registered with Companies House.

4.4 The supporting evidence

The supporting evidence will usually consist of one or more statements of truth or statutory declarations. In line with our document handling policy only certified copies of form ST1, form ST2, statutory declarations and other evidence should be lodged. If any originals are lodged, they will be scanned and destroyed.

If a statement of truth is used it may be in form ST1. Form ST1 is designed to provide a framework for the information that must be included with an application where the land is unregistered or under Schedule 12, paragraph 18 of the Land Registration Act 2002 (form ST2 is the equivalent form for rent charge applications). Its use is not obligatory; any statement of truth that meets the requirements of rule 215A of the Land Registration Rules 2003 will be acceptable, as will a statutory declaration - see Appendix: statement of truth. However, using form ST1 should help you to ensure that nothing has been overlooked. If you do not use form ST1, you need to provide all the information requested by that form – such as the dates the adverse possession started and finished, the acts relied on as establishing the necessary factual possession and intention to possess, and so on.

The statements of truth or statutory declarations should be factual and ideally the person making the statement or declaration will use their own words rather than language copied from precedent books. The person should expressly state how the facts are known to them if this is not implicit in the statement or declaration. Information from third parties who have observed the position on the ground but may have no knowledge of the squatter’s intentions or dealings with the owner will usually carry less weight than the squatter’s own statement or declaration. However, statements of truth or statutory declarations from neighbours and other third parties sent in with the squatter’s statement of truth or statutory declaration may be useful as corroborative evidence.

We can never say what the outcome of an application will be before it is made. We can only make this decision after all the evidence has been produced by the applicant, we have received responses to requisitions and the time period relating to the notices we have served has expired. For this reason, and to avoid putting words into people’s mouths, please do not send us draft statements of truth or statutory declarations for approval.

4.5 Searches

If the owner is (or appears to be) a company you should carry out an appropriate company search to find out whether or not the company has been dissolved and obtain details of any charges the company has entered into in respect of the land. You should lodge the results of the search with the application. See the comments about dissolved companies in Extended periods.

You should carry out a search of the index map to check whether or not the land is registered.

Where the land is unregistered, you should send in with the application land charges search certificates in respect of the squatter, the owner and any previous owners who can be identified.

Where the land is unregistered and there is a reasonable possibility of it being common land or town or village green you will need to make a commons registration search and send in the response to the search. The Department for Environment Food and Rural Affairs has published a guidance note on adverse possession of common land and town or village greens which is available on the GOV.UK website. (HM Land Registry does not necessarily share all statements of opinion as to the law that are expressed in the guidance note.)

4.6 Highway

We will not complete a first registration application based on adverse possession in so far as the land concerned lies within a highway maintainable at the public expense. The highway authority’s title to the surface (by virtue of section 263 of the Highways Act 1980) cannot be lost by adverse possession, so the squatter has no estate in the surface (nor, it would seem to follow, in the ground beneath or airspace above the surface), the title to which can be registered (R (on the application of Wayne Smith) v The Land Registry (Peterborough Office) [2010] EWCA Civ 200).

Where a first registration application relates to land within a highway that is not maintainable at the public expense and the application is completed so as to include the highway, the registered title will be subject to the public right of way (this right will be an overriding interest: paragraph 5 of Schedule 1 to the Land Registration Act 2002). Where an application under paragraph 18 of Schedule 12 to the Land Registration Act 2002 relates to such land and is completed, then the registered title, to the extent it includes the highway, will be subject to the public right of way and, if the highway is maintainable at the public expense, to the highway authority’s estate in the surface; both the right of way and highway authority’s estate will continue to operate as overriding interests (Secretary of State for the Environment v Baylis (Gloucester) Ltd (2000) 80 P & CR 324).

5. HM Land Registry’s response and registration

5.1 Inspection

Often the statements in statements of truth or statutory declarations, while not untrue, do not give a complete picture. For example, the person making the statement or declaration may have forgotten to mention a gate in a feature that appears, on the Ordnance Survey map, to bar access from adjoining land. We therefore usually need to arrange for a surveyor from Ordnance Survey to inspect the land and to see their report before we can register with any class of title.

You, the squatter and the owner (if known) will be informed of the inspection before it takes place.

Where the land is unregistered, a fee under the current Land Registration Fee Order is payable by the squatter for the inspection and it must be paid with the fee for the application when form FR1 is lodged - the relevant provisions under the current Land Registration Fee Order are articles 11 and 13(4) (see HM Land Registry: Registration Services fees). This fee will be refunded if a survey is not undertaken for any reason. Where the land is registered, the current fee for the application payable under the current Land Registration Fee Order is taken to include the inspection fee.

5.2 Case law

We examine each application on its own merits. We bear in mind the case law on adverse possession, but you need to remember that the court will have heard evidence and arguments on both sides while we will normally only hear the squatter’s version of events. And although the facts in any application may be superficially similar to those in a reported case, they are unlikely to be identical.

5.3 Notices

If from the evidence we have seen we believe it to be more likely than not that there has been adverse possession for the requisite period, we will give notice of the application to any person who, from the information available or from our local knowledge, may have an interest in the land. Where the land is registered, we will serve notice on the registered proprietor and on any registered chargee.

We will not complete a first registration application based on adverse possession in so far as the land concerned lies within a highway maintainable at the public expense. The surface of such highway vests in the highway authority: section 263 of the Highways Act 1980, section 263. It appears that, at least where the land is unregistered, title to the surface cannot be acquired by adverse possession: in London Borough of Bromley v Morritt (1999) 79 P & CR 536. Mummery LJ stated:

“As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.”

We will notify the relevant highway authority if there is an evident possibility of highway maintainable at the public expense falling within the first registration application. It is of course advisable that you make enquiries of the highway authority before submitting an application for registration if it appears that the land may include highway.

5.4 Class of title

Generally, where the application is in respect of unregistered land, we will only register the squatter with an absolute title if we are satisfied that their adverse possession has barred the owner’s title. Usually this will only be so where:

• we know what that title is
• we are satisfied that the owner has consented to, or could have no valid grounds for objecting to, the squatter being registered as proprietor of the land

In any other case we will only register with a possessory title. And we will not register even with this title in cases of real doubt. In part this is because where the squatter remains in possession for 12 years, we may convert a possessory title to absolute title: section 62(4) of the Land Registration Act 2002. It is also because we need to bear in mind the owner’s rights. It would be wrong to put the owner to the inconvenience of making an application for alteration if the evidence was such to leave real doubt as to whether the squatter had satisfied the requirements set out in Adverse possession: the essentials.

Where we complete an application under Schedule 12, paragraph 18 of the Land Registration Act 2002 we will register the squatter with the same class of title as the registered proprietor.

5.5 Protective and other entries

A squatter, not being a purchaser for value, is bound by all subsisting legal and equitable rights (Re Nisbet and Potts’ Contract (1906) 1 Ch 386).

Where the owner’s title has not been deduced, we will usually make a protective entry in respect of restrictive covenants and, in areas where they are common, rentcharges. The entry will be along the following lines.

“The land is subject to such [restrictive covenants][and][rentcharges] as may have been imposed thereon or existed before [the date of first registration] and are still subsisting and capable of being enforced.”

We will not, however, make a protective entry if we are satisfied on the evidence available that there is only a minimal risk that undisclosed restrictive covenants or rentcharges affect the land.

Where registers of adjoining titles have the benefit of appurtenant easements over the land being registered we will enter notice of those easements in the register of the squatter’s new title.

When we complete an application under Schedule 12, paragraph 18 of the Land Registration Act 2002 we will either register the squatter as proprietor of the existing title if the application relates to the whole of the registered title or, if it relates to part of an existing title, we will remove the land from that title and register the squatter as proprietor under a new title number. In the latter case we will bring forward the subjective entries onto the new title.

5.6 Charges

The squatter’s title will not as a rule be subject to a charge by the owner created after the start of the adverse possession. Where the adverse possession is of unregistered land, the estate now being registered is the one that arose at the start of that adverse possession; at that point there was no charge, so it cannot affect the squatter’s estate and they are entitled to be registered free from it. Where the adverse possession was of registered land, the right to be registered acquired or being acquired by the squatter is automatically an overriding interest: section 70(1)(f)) of the Land Registration Act 1925. Since 13 October 2003 the right to be registered has operated as an overriding interest where the squatter is in actual occupation: Schedule 3, paragraph 2 of the Land Registration Act 2002. (Up to and including 12 October 2006 it was also an overriding interest in its own right).

If the owner’s charge precedes the adverse possession, time may start to run against the chargee at the same time as it starts to run against the owner of the land but only if the mortgage repayments cease with the adverse possession. Time will not start to run where there is a later mortgage repayment by the owner or squatter during the adverse possession: section 29(3) of the Limitation Act 1980. Of course, where the adverse possession is of only part of the land charged – perhaps of a piece of the garden to a house – it is likely that the owner will have continued to make the repayments. The squatter’s title will then be subject to the charge. (There is no apportionment of the mortgage debt. To secure the release of the land from the charge, the squatter must pay the full amount outstanding: Carroll v Manek (2000) 79 P & CR 173).

We will serve notice of the application on any chargee who can be identified. You must specify whether you are seeking registration free from the charge or subject to the charge. If you seek registration free from the charge, the evidence you supply in support of the application needs to set out the grounds on which it is claimed that the squatter’s title is free from the charge. If you seek registration subject to the charge, any notice we serve on the chargee will make clear that we intend to enter the charge on the new title, or register the squatter as proprietor subject to the charge, unless the chargee expressly agrees to release their rights in the land.

6. Objecting to the squatter’s application

Anyone wishing to object to an application must deliver to the registrar a written statement signed by them or their conveyancer. It must state that the objector objects to the application, state the grounds for the objection and give the objector’s full name and an address for service. This must be a postal address, whether or not in the United Kingdom. Further postal, email or DX addresses may be given as well, but there can be no more than 3 addresses for service in total: rules 19 and 198 of the Land Registration Rules 2003.

If an objection is received the application cannot be determined until the objection is disposed of unless the registrar is satisfied that the objection is groundless: section 73(5) and (6) of the Land Registration Act 2002.

If the registrar decides that the objection is not groundless, notice of the objection must be given to the squatter or their conveyancer: section 73(5) of the Land Registration Act 2002. The registrar will then ask both parties whether they wish to negotiate and whether they consider that it may be possible to reach an agreement. If all parties respond positively the registrar will allow them time to settle the matter by agreement. However, as soon as it becomes clear that the 2 sides are unable to reach an agreement the registrar must refer the matter to the tribunal: section 73(7) of the Land Registration Act 2002. The registrar will do this immediately if the parties do not wish to negotiate.

The tribunal will then either set a date for hearing and determining the matter or direct one of the parties to start proceedings in court. Further details of the procedure to be followed and of the position as to costs will be supplied by it at that stage.

A squatter needs to take account of these points before making an application based on adverse possession. Even if the application does not lead to court proceedings or a hearing:

• we will serve notice on the owner (if known)
• in limited circumstances, the squatter may have to pay the costs incurred by the owner as a result of the squatter’s application

Where a dispute is resolved without a judicial determination, such as where the squatter withdraws the application for first registration, a person may request the registrar to make an order for costs where the conduct of the other party has been unreasonable in relation to the proceedings. The registrar will take into account all the submissions made and all the circumstances, including the conduct of the parties and the results of any enquiries the registrar has made: rule 202 of the Land Registration Rules 2003.

7. Leasehold matters

7.1 Adverse possession of leasehold land

As soon as the squatter takes possession of land that is leased, time runs against the tenant.

Where the lease is unregistered, the tenant is no longer able to recover possession of the land from the squatter at the end of the limitation period. However, they can still surrender the lease to the landlord: Fairweather v St Marylebone Property Co Ltd [1963] AC 510. It follows that the freehold estate the squatter acquired from the moment they took possession is good against all the world except a reversioner.

As a result, our practice used to be to refuse an application for first registration based on adverse possession where the lease was unregistered. We are now prepared to proceed with such an application provided that (i) there is no registered freehold or leasehold reversion and (ii) the registrar is satisfied that the possibility of there being a surrender with a reversioner then asserting a claim to possession against the squatter is sufficiently remote to be discounted. Any resulting registration will usually be with a qualified freehold title. It is a freehold title because that is always the estate acquired as a result of adverse possession of an unregistered estate. The exception will be where the squatter is themselves a tenant encroaching from leasehold land and the presumption in Smirk v Lyndale Developments Ltd [1975] 1 Ch 317 is not rebutted, when the resulting registration will be with a qualified leasehold title. The qualification will be along the following lines:

QUALIFICATION: This title arises from adverse possession of the leasehold estate under a lease dated … and made between … There is excepted from the effect of registration any estate, right or interest adverse to, or in derogation of, the proprietor’s title subsisting at the time of registration or then capable of arising and any right of the person for the time being entitled to the reversion expectant on the term of the lease to take possession following a surrender of the lease.

Where the lease is registered and the limitation period expired before 13 October 2003, the tenant does not have this right to surrender the lease: Spectrum Investment Co v Holmes [1981] 1WLR 221; Central London Commercial Estates Ltd v Kato Kagaku Co Ltd [1998] 4 All ER 948. So any registration of the squatter will be with a leasehold title.

Time does not run against the landlord until the lease expires – unless the adverse possession started before the lease, in which case time will continue to run against the landlord during the term of the lease.

Non-payment of rent before the lease expires is irrelevant. However where:

• the rent is received by a stranger wrongfully claiming to be entitled to the land in reversion
• the lease is in writing (not granted by the Crown) by which a rent of not less than £10 a year is reserved (20 shillings a year or more if the lease was granted before 1 August 1980), and
• no rent is subsequently received by the person rightfully entitled

the period of adverse possession, in favour of the stranger in receipt of the rent, will commence on the date the rent was first paid to them: Schedule 1, Part 1, paragraphs 6 and 8(3)(b), and Schedule 2, paragraph 8 of the Limitation Act 1980.

Where the reversion was registered before 13 October 2003 and by that date the necessary limitation period had expired, the position is the same and the stranger is entitled to be registered under Schedule 12, paragraph 18 of the Land Registration Act 2002.

7.2 Encroachment from leasehold land

7.2.1 Encroachment from leasehold land by a tenant squatting on an unregistered freehold estate and seeking first registration of a leasehold title

If the squatter is the lessee of adjoining land, the encroachment will usually be presumed to amount to an accretion to their lease. The additional land will be included in the surrender to the landlord when the tenancy ends (See Smirk v Lyndale Developments Ltd [1974] 3 WLR 91 and the authorities cited therein. The Court of Appeal approved what was said by Pennycuick V-C on the encroachment by a tenant point: [1975] Ch 317, 337. See also Tower Hamlets v Barrett [2005] EWCA Civ 923.).

Where the applicant accepts that the presumption applies (you may include this information in the statement of truth or statutory declaration – see The supporting evidence), you must make the application on form FR1: rule 23 of the Land Registration Rules 2003. Complete panel 4 as to the appropriate leasehold class of title. It is necessary that there is more than 7 years of the squatter’s documentary lease term still to run: section 3(3) of the Land Registration Act 2002.

Any notice (see Notices) which we may serve will make clear that the applicant is seeking to register title to the land on the basis that, having encroached for the relevant period under the Limitation Act 1980, the land is now included in the holding comprised in the lease and will give details of that lease.

If the application is completed, we will enter a note in the property register to the effect that, although not originally within the extent demised by the lease, the land encroached on is now held for the term of, and as an accretion to, that lease.

7.2.2 Encroachment from leasehold land by a tenant squatting on an unregistered freehold estate and seeking first registration of a freehold title

Where the applicant claims that the presumption that the land forms an accretion to the lease does not apply, you must make the application on form FR1: rule 23 of the Land Registration Rules 2003. Complete panel 4 as to the appropriate freehold class of title. You should include all available evidence of the squatting tenant’s leasehold title (if this is unregistered) in addition to the supporting evidence referred to in The supporting evidence.

If evidence of rebuttal of the presumption is produced and the application proceeds, we will serve notice of the application on the landlord of the squatting tenant. The notice will refer to the presumption. If the landlord of the squatting tenant cannot be identified, we will only be able to consider registering with a qualified title. The qualification will be on the lines that the enforcement of any estate, right or interest adverse to, or in derogation of, the title of the proprietor’s title subsisting at the time of registration or then capable of arising is excepted from the effect of registration.

7.2.3 Encroachment from leasehold land by a tenant squatting on registered land which was registered on 13 October 2003, there having been 12 years adverse possession by that date, the tenant accepting that the presumption applies that the encroachment amounts to an accretion to their lease

Where the presumption that the encroachment amounts to an accretion to the lease applies, the tenant squatter cannot be the beneficiary under a trust under section 75(1) of the Land Registration Act 1925 and therefore cannot apply for registration under Schedule 12, paragraph 18 of the Land Registration Act 2002. However, you can apply on form FR1 for first registration of the leasehold title they had acquired by 13 October 2003: rule 23 of the Land Registration Rules 2003. This is provided that there is more than 7 years of the squatter’s documentary lease term still to run: section 3(3) of the Land Registration Act 2002. It is also provided that the title has not been subsequently lost through registration of a registrable disposition of the registered estate for valuable consideration at a time when the leasehold estate was not an overriding interest: section 29 of the Land Registration Act 2002.

Any notice (see Notices) which we may serve will make clear that the applicant is seeking to register title to the land on the basis that, having encroached for the relevant period under the Limitation Act 1980, the land is now included in the holding comprised in the lease, and will give details of the lease. It will also make it clear that a notice in respect of the squatting tenant’s leasehold interest will be entered in the existing registered title.

If the application is completed, we will enter a note in the property register to the effect that, although not originally within the extent demised by the lease, the land encroached on is now held for the term of, and as an accretion to, that lease. Where the encroachment has been onto another tenant’s land and the squatter’s documentary lease is for a longer term than the term granted to this other tenant, the note will also make it clear that the land is held as an accretion to the squatter’s documentary lease, but only for the term of years demised by the lease to the other tenant on whose land the squatter has been squatting.

7.2.4 Encroachment from leasehold land by a tenant squatting on registered land which was registered on 13 October 2003, there having been 12 years adverse possession by that date, the tenant not accepting that the presumption applies that the encroachment amounts to an accretion to their lease

Where the applicant claims that the presumption that the land forms an accretion to the lease does not apply and you wish to apply for registration under Schedule 12, paragraph 18 of the Land Registration Act 2002, you must make the application on form AP1: rule 13 of the Land Registration Rules 2003. You should include all available evidence of the squatting tenant’s leasehold title (if this is unregistered) in addition to the supporting evidence referred to in The supporting evidence.

If evidence of the rebuttal of the presumption is produced and the application proceeds, we will usually serve notice of the application on the landlord of the squatting tenant as well as on the registered proprietor of the title affected by the application. Any notice to the landlord will refer to the presumption that operates where a squatter is a tenant and will provide details as to why the tenant considers the presumption does not apply.

8. Rentcharges

Before 6 April 2014, rentcharges were included in the definition of land for the purposes of sections 15 and 17 of the Limitation Act 1980 so that a squatter could acquire title to a rentcharge by adverse possession. HM Land Registry acknowledges there is uncertainty in the law regarding the adverse possession of rentcharges from 6 April 2014 onward following amendments made to section 38 of the Limitation Act 1980 by Schedule 14 to the Tribunal Courts and Enforcement Act 2007. ‘Rentcharges’ were removed from the definition of ‘land’ in section 38 with the consequence that sections 15 and 17, which operate only in respect of land, appear no longer to apply to rentcharges.

Until this uncertainty is resolved, HM Land Registry will deal with applications to cancel notice of a rentcharge which is not registered in its own right as follows.

8.1 The claimed period of adverse possession expired prior to 6 April 2014

The amendments to the Limitation Act 1980 will not affect the position where the requisite period of adverse possession had already accrued prior to 6 April 2014.

8.2 The claimed period of adverse possession expired after 6 April 2014

If the rentcharge owner is known, HM Land Registry will serve notice of the application to cancel the notice of rentcharge. The notice will include details of the uncertainty relating to the Limitation Act 1980.

If the rentcharge owner is unknown or if service of notice is unlikely to be effective, HM Land Registry will consider the application in the usual way. If the registrar is not satisfied that the rentcharge has come to an end, they may enter in the register details of the circumstances in which the applicant claims the interest has determined (r. 87(4) Land Registration Rules 2003).

8.3 Applications under the transitional provisions (Schedule 12, paragraph 18 to the Land Registration Act 2002)

Transitional provisions applications are unaffected by the amendment to the Limitation Act 1980 since the period of adverse possession must have been completed by 13 October 2003.

Where the rentcharge the subject of the application also affects other land (and there is no formal apportionment) there is a possibility that someone other than the applicant may have paid the rent (for example, under an informal apportionment). This would prevent any period of limitation from running and so prevent determination of the rentcharge by adverse possession. In this situation it may be difficult for an applicant to provide satisfactory evidence of adverse possession which would allow an application to proceed. For applications to cancel notice of an unregistered rentcharge which also affects other land, if there is insufficient evidence that no-one has paid the rent, a ‘claimed’ entry under rule 87(4) of the Land Registration Rules 2003 can be considered.

9. Protection prior to registration of the squatter

We will not register a squatter’s title to unregistered land unless there is evidence of adverse possession for at least 12 years. Furthermore, in the meantime the squatter cannot lodge a caution against first registration (subject to the guidance in the next paragraph). The squatter will be claiming to be the owner of a legal estate in land arising out of possession, and a caution cannot be lodged by virtue of ownership of a freehold estate in land: sections 15(1)(a) and (3)((a)(i)of the Land Registration Act 2002; this is the estate to which the squatter has title (Rosenberg v Cook (1881) 8 QBD 162, 165, per Jessel MR). We do not think that a squatter can claim to be entitled to an interest affecting a qualifying estate (the paper owner’s estate in land): section 15(1)(b) of the Land Registration Act 2002. (Section 132(3) of the Land Registration Act 2002 provides that references to an interest affecting an estate “are to an adverse right affecting the title to the estate”: it is difficult to see how a squatter’s freehold estate, before the limitation period has expired, could be described as an adverse right affecting the paper owner’s title.) This is not to say, however, that the squatter will necessarily lose the benefit of the adverse possession on first registration of the paper title. The first registration will be a mistake if it takes place after the paper title has been extinguished, and so the squatter should be able to apply for alteration under Schedule 4, paragraph 5 of the Land Registration Act 2002 (the registered title being closed) and for first registration of their own title. (If the squatter is in actual occupation or the first proprietor has notice of the squatter’s estate, the estate vested in the proprietor will be subject to that estate: sections 11(4)(b) and (c) of the Land Registration Act 2002. Alteration of the register will not, therefore, prejudicially affect the proprietor’s title. This means that the alteration will not constitute rectification and so the proprietor will not be entitled to indemnity in the event that the title is closed: Schedule 8, paragraphs 1(1)(a) and 11(2)(b) of the Land Registration Act 2002.) If the first registration takes place before the paper title has been extinguished but the squatter stays in adverse possession, then once there has been 10 years adverse possession in total - so that Schedule 6, paragraph 1 is satisfied - they can apply to be registered as proprietor of the registered estate under Schedule 6 of the Land Registration Act 2002.

The position would seem to be different where the squatter is a successor in title to an earlier squatter who has transferred the possessory estate. If the squatter does not apply for first registration within 2 months of the transfer of the possessory estate, the title to this estate will revert to the transferor/first squatter, who will then hold it on a bare trust for the squatter: sections 6 and 7 of the Land Registration Act 2002. The same reversion would appear to take place if the squatter does apply for first registration but the application is cancelled (Sainsbury’s Supermarket Ltd v Olympia Homes Ltd [2005] EWHC 1235 at [67]-[71]). Thus, the squatter will have a beneficial interest in this freehold estate, and so can, if they choose, lodge a caution against first registration. (A person must not lodge a caution without reasonable cause; this duty is owed to anyone who suffers damage as a result of its breach: section 77 of the Land Registration Act 2002.) The application is made on the basis that they are entitled to an interest affecting a legal freehold estate in land as opposed to being the owner of such an estate: section 15(1)(b) of the Land Registration Act 2002. (The freehold estate involved is the possessory estate which is the subject of the transfer by the earlier squatter.) Note that this reasoning applies equally whether or not the documentary title has been extinguished by the time of the transfer of the possessory estate.

The squatter’s right to be registered under Schedule 12, paragraph 18 of the Land Registration Act 2002 is a proprietary right and so is capable of being an overriding interest. It will not be lost as a result of the registration of a transfer or other registrable disposition for valuable consideration provided the squatter remains in actual occupation at the time of the disposition: section 29(2)(a)(ii) and Schedule 3, paragraph 2 of the Land Registration Act 2002. Whether there must also be actual occupation at the time of registration of the disposition for the right to be an overriding interest is not certain (Thomson v Foy [2009] EWHC 1076).

10. Appendix: statement of truth

A statement of truth is a method of providing evidence in support of an application. As a result of changes made by the Land Registration (Amendment) Rules 2008, it can be accepted for land registration purposes instead of a statutory declaration.

Its adoption by HM Land Registry follows the precedent set by the civil courts in accepting a statement of truth as evidence in place of an affidavit or statutory declaration.

10.1 Requirements

For land registration purposes, a statement of truth is defined as follows (rule 215A of the Land Registration Rules 2003):

• it is made in writing
• it must be signed by the person who makes it (unless they cannot sign – see statement of truth made by an individual who is unable to sign it)
• it need not be sworn or witnessed
• it must contain a declaration of truth in the following form: ‘I believe that the facts and matters contained in this statement are true’.
• if a conveyancer makes the statement of truth or signs it on someone’s behalf, the conveyancer must sign in their own name and state their capacity – see Signature by a conveyancer

10.2 Statement of truth signed by an individual who is unable to read

Where a statement of truth is to be signed by an individual who is unable to read, it must:

• be signed in the presence of a conveyancer
• contain a certificate made and signed by that conveyancer in the following form:

“I [name and address of conveyancer] certify that I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who signed it or made [his] or [her] mark in my presence having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration.”

10.3 Statement of truth made by an individual who is unable to sign it

Where a statement of truth is to be made by an individual who is unable to sign it, it must

• state that individual’s full name
• be signed by a conveyancer at the direction and on behalf of that individual
• contain a certificate made and signed by that conveyancer in the following form:

“I [name and address of conveyancer] certify that [the person making this statement of truth has read it in my presence, approved its content as accurate and directed me to sign it on [his] or [her] behalf] or [I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who directed me to sign it on [his] or [her] behalf] having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration.”

10.4 Signature by a conveyancer

Where a statement of truth is made by a conveyancer, or a conveyancer makes and signs a certificate on behalf of someone who has made a statement but is unable to read or sign it, the conveyancer must:

• sign in their own name and not that of their firm or employer
• state the capacity in which they sign and where appropriate the name of their firm or employer

11. Things to remember

We only provide factual information and impartial advice about our procedures. Read more about the advice we give.