In this week’s Property Surveying blogpost, we are going to be discussing boundary disputes and determinations.
In particular, we will be discussing the scenario that comes into play when the person whom has caused the trespass onto a neighbouring owner’s land, attempts to gain ownership and legal standing upon that land via adverse possession.
First and foremost, let us take a look at what adverse possession means.
Adverse possession is the legal principle whereby a person who does not, and is not a legal owner, nor do they hold legal Title of the land in question, by virtue of the common law and statutory requirements being met, can become the owner of the land.
In becoming the owner of the land, they will need to be in possession of the land for a long enough period, thereby giving them legal standing and right to that area of land, and thereby ousting or removing the true legal owner.
To start with it is worth noting that adverse possession is not straightforward and is actually a complicated process that needs to be well-considered, knowingly considered and planned for.
Ultimately it will need to exercised with acute precision to ensure that the necessary timings are met and all necessary procedures to gain adverse possession are indeed exercised.
The key principles for adverse possession to be applicable is that the person who is trespassing onto the property must have been in possession of the land to which they are claiming for a sufficient and necessary period of time. The necessary period of time is a minimum of 10 consecutive calendar years.
However, simply having occupation and possession of the land for a period of 10 years is not enough.
Instead, the possessor of the Adverse Possession Claim must be able to demonstrate on a factual and legal basis, that they have had possession of that land for that extended period of time. Furthermore, that they intended to possess the land for that period of time.
In essence, this means that they have acted in a manner whereby they have treated the land as their own, whereby the current owner has not.
An application will need to be made by the possessor of the land, with Her Majesty’s Land Registry.
The necessary application will need to be accompanied by the possessor’s statutory declaration.
This declaration will need to be made no more than a month before the application date. Furthermore, the possessor of the land will need to be able to provide evidence and proof of the adverse possession for the period of 10 years.
The Land Registry are not going to overly investigate or look into this, however, they will notify the registered proprietor and owner of the land as per the Land Registry Title Deed. They will do this by serving a Notice upon that owner, giving the owner the opportunity to object to the possessor’s application or, alternatively, serve their own counter-Notice.
It is important to note that this particular blogpost deals with registered land, and there is a completely different procedure in place for unregistered land.
Bearing in mind that we are looking at this through the eyes of boundary surveying, the registered land procedure is the one we are going to be focussing on through this post.
The procedures in which a possessor can gain adverse possession over an owner’s land are set out by the Land Registry Act 2002. Commonly, this is referred to as the LRA within legal and professional circles.
The LRA and changes to adverse possession have been done so with the aim of ensuring that all land is registered by 2030.
The notion being therefore that land that is currently not been maintained, overlooked or simply ignored can indeed be used again for a better purpose.
Within the context of boundary disputes and boundary surveying, it is also important to note that adverse possession is likely to be granted, if indeed there is a reasonable mistake as to where the boundary has been.
However, this is not straightforward and the following conditions will need to be met for it to apply:
The land that the possessor is attempting to dispossess from the owner is adjacent to the land owned by the squatter.
- The exact line of the boundary had not already been determined.
- Dispossessor reasonably believed that the land was indeed within their ownership.
- The land in question had been registered by the legal owner for more than one year prior to the date of the application.
- The dispossessor will have to be able to demonstrate these principles and requirements in order to successfully dispossess the owner of the land.
Here at Stokemont, if indeed there is a boundary dispute in place, and adverse possession is a bonified potential claim that the neighbouring land owner or dispossessor can make, we would advise that a boundary surveyor’s report is undertaken without delay.
Assuming it is indeed agreed that the is a trespass and attempt at adverse possession taking place, we would advise that the dispute is registered directly to the neighbouring owner, thereby quashing and stopping the attempt to gain adverse possession of the area of land in question.
Adverse possession is not something that boundary surveyors are likely to get overly involved in, as it is incredibly complicated and very much the realm and demise of solicitors, if not reserved for barristers.
That being said, we do indeed deal with adverse possession issues on a daily basis from a boundary perspective here at Stokemont.
Therefore, if you would like to discuss adverse possession and boundary disputes with our team of qualified and experienced RICS surveyors and boundary surveyors, give us a call today, and we would be more than happy to assist and advise you.
