After 10 years of ‘adversely possessing’ registered land, a party can apply to the Land Registry to be registered as the new owner in place of the existing one. Broadly, the applicant must demonstrate that they have exclusively possessed the land, and that the possession was both intentional and without the owner’s consent.
However, the concept of adverse possession of registered land is inherently problematic. The doctrine is not easily reconcilable with the concept of indefeasibility of title that underpins the system of land registration in the UK. The uncertainties as to ownership which may justify adverse possession of unregistered land do not apply to registered land where the legal estate is vested in the registered proprietor who is identified in the register.
The Land Registry’s adverse possession regime is based on principles of neutrality and fairness to both parties. On receipt of an application, the Land Registry will notify the paper owner of the land – typically by providing a copy of the application and supporting statement of truth. Enclosed with the notice will be a Form NAP by which the paper owner is invited to:
The Land Registry gives the paper owner a generous 65 business days (ie approximately three months) to respond. If the application is not opposed (that is, if the paper owner does not respond to the Land Registry’s notice, or returns Form NAP consenting to the registration of the applicant), the applicant will be registered as proprietor in place of the paper owner after the expiry of the 65 business days.
If the paper owner objects to the application, the matter will be referred to the Land Registry’s dispute resolution regime.
However, if the paper owner requires the application to be dealt with under paragraph 5 of Schedule 6, the application will be rejected without further ado, unless the applicant is able to rely on one of the three conditions in paragraph 5 (and stated as such on his application form). The conditions are:
If an application is rejected as a result of a counter notice being given and none of the three conditions being met, the applicant will need to wait a further two years before resubmitting their application. During this time, the paper owner may evict the applicant. Only after that two-year period can the applicant reapply to the Land Registry, presuming he has been in adverse possession of the land throughout. The applicant will at that point be registered as the owner, provided the paper owner has taken no action to recover possession in the intervening period.
Accordingly, the paper owner has two years from the rejection of the application in which to take steps either to evict the applicant or to legitimise their occupation. Presumably any paper owner who responded to the application by serving a counter-notice will be minded to protect their interest in this way.
This serves as a warning to those seeking to acquire registered land by adverse possession. Such applications are far from straightforward, and can be struck-out by the paper owner by the mere ticking of a box, except in the most deserving of cases. By submitting an application for adverse possession where none of the conditions in paragraph 5 applies, the applicant effectively risks being evicted from the land by the paper owner. Depending on the circumstances, it may be worth simply continuing to occupy the land rather than alerting the paper owner to the occupation and potentially upsetting the status quo.
From the perspective of the paper owner, the concept of adverse possession highlights the importance of keeping the address for service on the register up to date to ensure any notice of an application is received and can be responded to. Further, in the event that an application is rejected, action should be taken promptly to evict the applicant within the two year period.
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