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Squatters' rights, or verging on the ridiculous?

Posted on 30 September 2016

Squatters' rights, or verging on the ridiculous?

Arguments between neighbours over disputed patches of grass have disturbed the peace in two quiet Yorkshire towns this summer.  This has prompted wide press coverage of squatters' rights, or "adverse possession" as lawyers like to call it.

The case of Heaney v Kirkby is a useful reminder to landowners of how the adverse possession rules work.  Acquiring title to someone else's property may be easier than expected.

The facts in Heaney v Kirkby

The Woodshed and the Coach House were neighbouring properties, both originally forming part of the Hatfield Estate.  Mr Heaney bought the Woodshed in 1995.  Mr and Mrs Kirkby bought the Coach House four years later. 

Between the two properties was a 32 metre grass verge.  Crucially, title to this verge was "unregistered".  That means that the verge's legal owner, which was still the Hatfield Estate, had not registered this patch of land at the Land Registry.  Instead, its proof of title consisted simply of the past conveyances of the property.

Shortly after moving in, the Kirkbys carried out considerable work on the verge.  They cleared bushes, connected drains and laid a path.  Their builders also used the verge to access the Coach House and to store building materials.

For over 12 years, the Kirkbys continued to use the verge as if they were the owners.  They built parking spaces and a wall; brought in topsoil which they seeded with grass; planted a flower border and maintained the lawn.  Later they installed a post and rail fence to stop trucks driving over the verge.

The dispute

Mr Heaney eventually acquired paper title to the verge in 2012 from the Hatfield Estate.  He applied to the Land Registry to register him as proprietor of the verge, and told the Kirkbys to make no further use of it.

The Kirkbys argued that they were entitled to the verge, on the grounds that they had been in adverse possession since 1999.

The law on adverse possession

Nowadays it is fairly difficult to acquire title by adverse possession to "registered land", i.e. where ownership is registered at the Land Registry.

But where the land is unregistered, adverse possession is easier.  Any "squatters" need to prove that they have exercised physical custody and control of the property for 12 years, and that their conduct demonstrates to the outside world an intention to possess the property. 

The tribunal ruled that the Kirkbys had satisfied this test.  They had dealt with the land in a way to be expected of any occupying owner, showing a clear indication to dispossess the paper owner.

If the land had been registered at the Land Registry any point between 1999 and 2011, then the Land Registration Act 2002 would probably have blocked the Kirkbys' claim.

Unregistered land – the risks

Although less than 15% of land in England and Wales remains unregistered, this case serves as a warning to "paper" owners of unregistered land about the risks of adverse possession.  Owners of unregistered land should keep an eye on how their land is being used. Ideally, they should apply to register their land at the Land Registry to avoid a similar situation.

Adverse possession has, however, been used for the benefit of our clients.  For example, clients have been able to get registered title to basement vaults underneath existing properties that were not part of the "paper" title when their property was acquired.  The message from this is that clients should be cautious of what is happening with their unregistered property, but also aware of the potential to acquire neighbouring unregistered land used in conjunction with their property.

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