Adverse Possession and Your Neighbour's Fence

The most common way of establishing who owns land or for example a boundary fence is to look at the title deeds. Usually there will be a clear demarcation of who owns which part of the land and boundaries.

It is however sometimes possible for the original owners of land to lose their ownership due to another party's adverse possession of it.

What is 'adverse possession'?

Essentially adverse possession is where someone who is not the owner of land possesses (has sole use of) it.

For example:

Farmer A owns the Land X. Farmer B owns Land Y. Part of Land Y (owned by Farmer B) has been used solely by Farmer A for the last 20 years to park his caravan and he built a fence around it can only be accessed from his (Farmer A's land)

This land may be owned by Farmer B according to the title deeds, but Farmer A has had sole use and possession of it for a lengthy period. Ownership of the land has therefore transferred to Farmer A due to adverse possession.

When does adverse possession exist?

The test for adverse possession (as confirmed by the House of Lords in J A Pye (oxford) Ltd v Graham) [2002]) is whether the trespasser has possessed the land for the requisite period.

The 'requisite period' is:

1. If the land is unregistered - 12 years
2. If the land is registered but the adverse possession period occurred before 13 October 2003 - 12 years
3. If the land is registered but the adverse possession period did not occur before 13 October 2003 - 10 years

Note:

An application to the court for adverse possession is only recommended where the party taking possession does not have an entitlement to neighbouring land. If the party taking possession has rights to a neighbouring land (like Farmer A above), whilst they may have adverse possession, the application that should be made to the court is one to simply alter their and their neighbour's title plans to show the new boundary.

Neighbour Rights Checker

Check your legal rights in any neighbour dispute. Takes 1 minute.

Try our Neighbour Rights Checker free, here on this site →

Application under Options 1 or 2 above (unregistered land or registered land with adverse possession from pre-13 October 2003)

To show adverse possession, you must prove:

• That you have factual possession of the land
• That you intended to possess the land
• That possession is without the owner's consent
• That all of the above have been true for at least 12 years prior to the application

Factual possession is very dependent upon the circumstances of each individual case. However the court has offered the following guidance:

• The possessor must have exclusive possession of the property
• The possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and no one else has done so (eg cutting the grass / maintaining the boundary)
• Erecting a fence around the land is a positive indicator of adverse possession
I have a four foot border at the side of my property and have exclusively used this as a flower bed for 27 years. New neighbours have moved in and have claimed that the strip is part of their property. They are demanding that it is returned to them. What can I do?

A claim can only be brought within 12 years of the right to claim existing*:

Eg: Going back to our example above, the adverse possession by Farmer A commenced 20 years ago. The right to claim existed after possession for 12 years, so 8 years ago. Farmer A has 12 years from when the right to claim existed to actually make a claim, so now has just 4 years left.

• 20 years ago - adverse possession commences 1996
• 8 years ago - 12 year possession complete so right to claim arises 2008
• 4 years away - 12 year limitation period in which a claim can be made expires 2020

* There are slightly longer periods for government departments or spiritual organisations taking adverse possession, along with other specific but rare scenarios.

Application under Options 3 (registered land with adverse possession completing after 13 October 2003)

You must still prove the same criteria for adverse possession as above, but the relevant period for possession is shorter:

• That you have factual possession of the land
• That you intended to possess the land
• That possession is without the owner's consent and
• That all of the above have been true for at least 10 years prior to the application

There are however a number of exceptions that prevent an application under the new regulations being made:

1. The owner is or has been in enemy territory in the 12 months leading up the application (making it difficult to make an application for adverse possession against anyone in active military service)
2. The owner is suffering from a mental illness which means that they are unable to make decisions about issues such as possession / maintenance of land
3. At any point during the 10 years leading up to the application, the owner died and their state was passed on, the owner became bankrupt, or (if the owner is a company) the company was wound up

The process of making either of the above applications can be tricky, and your claim will be rejected if the forms are not completed correctly and relevant supporting evidence not provided. It is therefore recommended that you contact a lawyer if you are considering a claim for adverse possession; this is an extremely complex area of property law with plenty of exceptions, loopholes and technicalities!

The Next Step

Now that you have read through the advice above, you might want to put it into practice. Our Neighbour Rights Checker lets you check your legal rights in any neighbour dispute. Takes 1 minute. Try it now →