land tresspass

[carl105]

Hi,

I am writing to see if you can give me some advice with the following problem:

 

I took over tending an allotment garden in 1996 from an old lady who had planted the boundary hedging around the plot of land not long after the housing estate was built before the second world war.

 

 

The lady died a few years after passing the care of this land to me.

 

 

Halton Council never contacted me regarding the use of this land.

The housing estate was originally council owned and is now a mix of privately purchased and housing trust owned.

 

Halton Housing Trust took ownership over from the council around 2004

and they also have never contacted me regarding use of this land.

 

 

I have therefore maintained the land for some 20 years now,

cutting the boundary hedging and growing vegetables for myself and my family.

 

 

A neighbour has been sharing these maintenance responsibilities for the past year.

He has erected housing for 3 chickens approximately 6 months ago and they are now living on the allotment,

we are also in the process of building raised growing beds and paved foot paths.

 

Just as another piece of background information,

I started a bike project in 2007 on the land adjacent to the allotment.

 

 

The setting up of this project took approximately 18 months during which time I had contact with Halton Housing Trust regarding the permission for use of this land.

 

 

At the time it was mentioned about the allotment and the CEO of HHT at the time stated

that he knew I was using the neighbouring land as an allotment and in said that this was fine with him

for me to care for this land rather than it been neglected.

 

Halton Housing Trust have now sent me a letter of trespass and stating I have 14 days to remove all property

and buldings from this land, which consist of greenhouses a small shed and the henhouse.

They also state if I wish to contest this I have 7 days to do so in writing.

 

 

I received this letter on 20th of April 2016

and would appreciate any advice you can give as I am very upset

and angry about this situation.

 

Regards

Carl

[renegadeimp]

I would contest it, outline everything youve stated here, that youve had uninterupted use for decades. ALso iirc there are specialist solicitors who can deal with things like this.

[BazzaS]

You've used the land for 20 years so on the face of it you may have acquired rights "by prescription" (through long usage)

 

However, you've also noted that in 2007 you were "given permission".

So for some time (11 years?) you were using it "as of right" (without permission, without secrecy, without force), and had this continued, you'd acquire the right at 20 years.

 

But, if at 11 years they gave permission, you can't rely on the time after they gave permission, and they can revoke that permission, as they have.

[Mr.P]

The first step would be to determine who exactly is the registered owner of the land. This can often be done online via the Land Registry, but it may require a manual search of the local records. You may also be able to claim adverse possession and/or other rights over the land.

 

You will need expert legal advice on this, which will not be cheap. So as renegadeimp suggests, seek out a specialist in this field (pun not intended).

[renegadeimp]

Look for a specialist and see if they offer a free initial consultation. Then depending what they advise, you can decide to fight, or cut your losses.

 

The HA are propably wanting to sell that land on for future development which is why theyre getting strict.

[carl105]

Hi,don't think the land is for development, it is around 50 feet by 40 feet. it is a corner plot next to an established community bike project. it is the result of a local ward councilor steering things.they may not remember the conversation about the carry on bit..

[ThedaBara]

You can claim Adverse Possession after 10 years and if the registered owner doesn't remove you after a further 2 years, registration is automatic... but you obtained permission in 2007, which means you have only occupied the land for 11 years... You will need to serve notice to the land owner and see if they object... TB

 

Practice guide 4: adverse possession of registered land

 

Updated 18 January 2016

 

Contents

Introduction

Adverse possession: the essentials

Restrictions on making an application for registration based on adverse possession

Making an application for registration on the basis of adverse possession

Land Registry’s response and registration

Objecting to the squatter’s application

Giving counter notice to the registrar in response to notice

The three conditions in paragraph 5 of Schedule 6

Further application by the squatter for registration

Application to be registered as a person to be notified of a squatter’s application

Leasehold matters

Appendix: statement of truth

Things to remember

1. Introduction

1.1 The new regime: a brief overview

Prior to the coming into force of the Land Registration Act 2002, a squatter could acquire the right to be registered as proprietor of a registered estate if they had been in adverse possession of the land for a minimum of 12 years. However, the doctrine of adverse possession did not fit easily with the concept of indefeasibility of title that underlies the system of land registration. Nor could it be justified by the uncertainties as to ownership which can arise where land is unregistered; the legal estate is vested in the registered proprietor and they are identified in the register.

 

The Land Registration Act 2002 has created a new regime that applies only to registered land. This new regime is set out in Schedule 6 to the Act. It makes it more likely that a registered proprietor will be able to prevent an application for adverse possession of their land being completed. The following paragraphs provide a brief overview of the new regime; the remaining sections of this guide discuss it in more detail.

 

adverse possession of registered land for 12 years of itself will no longer affect the registered proprietor’s title

after 10 years’ adverse possession, the squatter will be entitled to apply to be registered as proprietor in place of the registered proprietor of the land

on such an application being made the registered proprietor (and certain other persons interested in the land) will be notified and given the opportunity to oppose the application

if the application is not opposed (by ‘opposed’ we mean that a counter notice is served; see Giving counter notice to the registrar in response to notice. Instead, or at the same time, the registered proprietor may object to the application on the ground that there has not been the necessary 10 years’ adverse possession; see Objecting to the squatter’s application for the implications of such an objection.), the squatter will be registered as proprietor in place of the registered proprietor of the land

if the application is opposed, it will be rejected unless either

it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the squatter ought in the circumstances to be registered as proprietor

the squatter is for some other reason entitled to be registered as proprietor

the squatter has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.

in the event that the application is rejected but the squatter remains in adverse possession for a further two years, they will then be able, subject to certain exceptions, to reapply to be registered as proprietor and this time will be so registered whether or not anyone opposes the application

1.2 The transitional provisions

There are important transitional provisions in the Land Registration Act 2002 covering cases where a squatter was in adverse possession of registered land for the requisite limitation period under the Limitation Act 1980 so as to have acquired the right to be registered as proprietor before 13 October 2003. This will usually have happened if the squatter was in adverse possession for at least 12 years before 13 October 2003, though sometimes a longer period will be necessary. For instance, if the land was owned by the Crown or an ecclesiastical corporation sole, when the period is 30 years, or was held in trust or by someone under a disability. See practice guide 5: adverse possession of (1) unregistered and (2) registered land - section 3: The limitation period. The transitional provisions preserve this right to be registered as proprietor, although the right can be lost.

 

A squatter may be able to apply under either the transitional provisions or the new regime. If they make applications both under the new procedure and under the transitional provisions, we will ask for confirmation as to which application should proceed first.

 

Practice guide 5: adverse possession of (1) unregistered and (2) registered land explains the transitional provisions in more detail and how to make an application for adverse possession under these provisions. This guide deals only with the new regime.

 

1.3 Application for alteration

There is a third type of application that may sometimes be made by a squatter in respect of registered land. This is where the first registration took place after the paper title had had been extinguished, meaning that the first registration was a mistake. The squatter can apply for alteration (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: section 11(4)(b) and © 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)(a) and 11(2)(b) of the Land Registration Act 2002.

 

2. Adverse possession: the essentials

Adverse possession requires factual possession of the land, with the necessary intention to possess and without the owner’s consent.

 

You must show:

 

that the squatter and any predecessors through whom they claim have been in adverse possession for at least 10 years (or at least 60 years for Crown foreshore) ending on the date of the application (Schedule 6, paragraph 1(1) of the Land Registration Act 2002). ‘Foreshore’ here means “the shore and bed of the sea and of any tidal water, below the line of the medium high tide between the spring and neap tides” (Schedule 6, paragraph 13(3) of the Land Registration Act 2002). In this context ‘Crown’ includes the Duchy of Lancaster and the Duchy of Cornwall (Schedule 6, paragraph 13(1) of the Land Registration Act 2002)

or that the squatter has been evicted by the registered proprietor, or a person claiming under the registered proprietor, not more than six months before the date of the application, that this eviction was not pursuant to a judgment for possession, and that on the day before the eviction they and any predecessors through whom they claim had been in adverse possession of the land for a period of 10 years ending on that date (Schedule 6, paragraph 1(2) of the Land Registration Act 2002)

Note that where adverse possession is claimed in respect of land owned by a company which has been dissolved and there has been disclaimer by the Crown or Royal Duchy so that escheat has taken place, an application based on adverse possession cannot be made under Schedule 6: the registered estate will have determined.

 

2.1 Factual possession

In Powell v McFarlane, ((1979) 38 P & CR 452. The House of Lords approved this statement of the law in J A Pye (Oxford) Ltd v. Graham [2002] UKHL 30.) 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.”

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 (1979) 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 ((1979) 38 P & CR 452, 476, cited with approval by Lord Hutton in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30):

 

“In my judgment 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.”

3. Restrictions on making an application for registration based on adverse possession

The following circumstances prevent an application being made for registration based on adverse possession

 

the registered proprietor is an enemy or detained in enemy territory, or has been an enemy or detained in enemy territory in the 12 months before the date of the application (Schedule 6, paragraph 8(1) of the Land Registration Act 2002)

the registered proprietor is unable because of mental disability to make decisions about issues of the kind to which an application for adverse possession would give rise, or is unable to communicate such decisions because of mental disability or physical impairment (Schedule 6, paragraph 8(2) of the Land Registration Act 2002)

the squatter is a defendant in proceedings which involve asserting a right to possession of the land, or judgment for possession has been given against them in the last two years (Schedule 6, paragraph 1(3) of the Land Registration Act 2002)

the estate in land was held on trust at any time during the period of 10 years ending on the date of the application, unless the interest of each of the beneficiaries in the estate was an interest in possession (Schedule 6, paragraph 12 of the Land Registration Act 2002)

arguably this means that an application cannot be made where, at any point during this period, the registered proprietor at the time (i) was dead and their estate was being administered, (ii) was bankrupt and their property was being administered by the trustee in bankruptcy or (iii) (being a company) was being wound up. In each of these cases the registered estate is subject to a form of trust (Ayerst v C & K (Construction) Ltd [1976] A.C. 167)

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 Land Registry to define the precise position of the boundary in question.

 

If it turns out that the squatter, in fact, 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, then 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 Fee Order. The determined boundary procedure could also be considered.

 

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

You must make the application on form ADV1 accompanied by a statement of truth or statutory declaration that meets the following requirement (Land Registration Rules 2003, rule 188(1)(a) and (2))

 

it must be made by the squatter not more than one month before the date of the application

it must provide evidence (together with any supporting statements of truth or statutory declarations) of adverse possession for not less than 10 years (or 60 years for Crown foreshore)

if the application relates to part only of the land in a registered title, it must exhibit a plan enabling the extent of the land to be identified on the Ordnance Survey map, unless the part is referred to by reference to the title plan and this enables it to be identified

if the squatter is applying under Schedule 6, paragraph 1(2) of the Land Registration Act 2002 (where they have been evicted during the previous six months, but this eviction was not pursuant to a judgment for possession), it must contain the facts relied on with any appropriate exhibits

it must contain confirmation that Schedule 6, paragraph 1(3) of the Land Registration Act 2002 does not apply (no current possession proceedings or judgment for possession given against the squatter in the last two years)

it must contain confirmation by the squatter that to the best of their knowledge none of the restrictions on applications contained in Schedule 6, paragraph 8 of the Land Registration Act 2002 applies (the proprietor is not an enemy or held in enemy territory or suffering from mental disability or physical impairment)

it must contain confirmation by the squatter that to the best of their knowledge the estate is not, and has not been during the period of adverse possession, subject to a trust (other than one where the interest of each of the beneficiaries is an interest in possession)

note that if, at any point during the period of adverse possession, the registered proprietor at the time (i) was dead and their estate was being administered, (ii) was bankrupt and their property was being administered by the trustee in bankruptcy or (iii) (being a company) was being wound up, the applicant must confirm (not necessarily in the statement of truth or statutory declaration, but in writing) that they wish to proceed with the application despite the fact that there is a view, as explained in the previous section, that in these circumstances a trust arises which prevents an application from being made

this confirmation will be apparent to anyone given notice of the application and they might object to the application on this basis (See Notices)

Very importantly, the squatter must decide what they will do if the registered proprietor, or someone else served with notice of the application, serves a counter notice requiring the registrar to deal with the application under Schedule 6, paragraph 5 of the Land Registration Act 2002. If the squatter wants to rely on one of the three conditions in that paragraph, you must ensure that this is stated in the form ADV1 and that the statement of truth or statutory declaration contains the facts that enable the squatter to rely on the condition Land Registration Rules 2003, rule 188(2)(g)).

 

If the ADV1 form contains some obvious clerical error, for example the absence of a tick in panel 11 where the supporting statement clearly discloses an intent to rely on a condition under Schedule 6 paragraph 5, then we may contact the applicant for confirmation of the position. This is because of the views expressed in the case of Hopkins v Deacon [2011] EWCH 2899 (Ch).

 

You should also send any additional evidence which is thought necessary to support the claim (rule 188(1)(b) of the Land Registration Rules 2003). We will need only certified copies of deeds or documents you send to us with Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

 

You should enclose the result of a company search if the registered proprietor of the title affected is a company. Please note the point about escheat made in Adverse possession – the essentials.

 

You must list all the documents accompanying the application on form ADV1 and pay the appropriate fee under the Fee Order. If you do not complete the form correctly, the form ADV1 may be returned to you.

 

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 within an ADV1 application relating to land (Form ST2 is the equivalent form for rentcharge applications.). Its use is not obligatory: any statement of truth that meets the requirements of rule 215A of the Land Registration Rules 2003 (See Appendix – statement of truth) will be acceptable, as will a statutory declaration. 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.

 

Applications are sometimes received in respect of land which is highway. The application will not be accepted to the extent it includes land which is highway maintainable at the public expense. The authority for this is R (Smith) v Land Registry [2010] EWCA Civ 200.

 

If only part of the land in the application is highway maintainable at the public expense, the application may proceed only for the land which is not highway. The highway land will not be included in any title which is created pursuant to the application.

 

It is quite rare for highway land not to be maintainable at the public expense. Where this is the case, however, an application can be accepted only where the facts relied on do not indicate there has been an obstruction to the highway which may be in breach of the criminal law, because in such cases adverse possession cannot be acquired: R (Smith) v Land Registry [2009] EWHC 328 and R (Best) v Chief Land Registrar [2015] EWCA Civ 17.

 

Finally, 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 its website: www.defra.gov.uk. (Land Registry does not necessarily share all statements of opinion as to the law that are expressed in the guidance note.).

 

5. 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, from the Ordnance Survey map, to bar access from adjoining land. Usually, therefore, we will arrange for a surveyor from Ordnance Survey to inspect the land and we will need to see their report before we can consider the application further.

 

You, the squatter and the registered proprietor will be informed of the inspection before it takes place.

 

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 from both sides, while we will normally at this stage only be hearing 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 the squatter is entitled to apply to be registered, we will give notice of the application, under Schedule 6, paragraph 2 to:

 

the registered proprietor of the estate affected

the registered proprietor of any registered charge on that estate

the Treasury Solicitor or the relevant Duchy where the registered proprietor is, or may be, a company which is dissolved (rule 188A of the Land Registration Rules 2003)

where the estate is leasehold, the registered proprietor of any superior registered estate

any person who has been registered as a person to be notified under Schedule 6, paragraph 2 of the Land Registration Act 2002

A person given such a notice may:

 

consent to the application

object to the application (section 73(1) of the Land Registration Act 2002)

give counter notice in form NAP to the registrar requiring the registrar to deal with the application under Schedule 6, paragraph 5 of the Land Registration Act 2002, (Schedule 6, paragraph 3(1) of the Land Registration Act 2002.)

or

 

both object to the application and give counter notice.

The notice will allow 65 business days for a reply and we will enclose a copy of form NAP for the recipient to use (rules 189 and 190 of the Land Registration Rules 2003). Form NAP must be used for a counter notice (whether or not the recipient also wants to object). It can be, but need not be, used to give consent or to object (though any objection must be in writing (rule 19 of the Land Registration Rules 2003)).

 

The registrar may also give notice to any other person considered appropriate (rule 17 of the Land Registration Rules 2003). Therefore, we will normally give notice to successors in title to the registered proprietor, known or suspected from other available information or our local knowledge to have become entitled to the estate affected, such as a trustee in bankruptcy or a successor local authority. This notice will allow 15 business days for a reply as it is not a notice that the registrar is required to give under Schedule 6, paragraph 2 of the Land Registration Act 2002. A person receiving such a notice will only have two options: either to consent or to object to the application. They cannot serve a counter notice in form NAP, and therefore we will not enclose form NAP with this notice.

 

5.4 Registration

If we do not receive a counter notice from any of the people given notice under Schedule 6, paragraph 2 of the Land Registration Act 2002, or any objection, we will register the squatter as proprietor once the time limit has expired (Schedule 6, paragraph 4 of the Land Registration Act 2002). If the squatter’s application relates to the whole of an existing registered title, we will register them as proprietor of that title. If their application relates to part of an existing registered title, then we will remove that part from the existing title and register them as proprietor of that part under a new title number.

 

As a general principle, the registration of a squatter does not affect the priority of any interest affecting the estate (Schedule 6, paragraph 9(2) of the Land Registration Act 2002). Therefore, when a squatter is registered as proprietor of the whole or part of an existing registered title, they will take subject to the same estates, rights and interests that bound the previous proprietor. This means that existing subjective entries will be carried forward to the squatter’s new title. This general principle is subject to what we say in Charges.

 

5.5 Charges

The general rule is that a squatter is automatically entitled to be registered free of any registered charges (but not charges protected by a notice in the register) affecting the title immediately before their registration (Schedule 6, paragraph 9(3) of the Land Registration Act 2002).

 

There is an exception to this general rule. This is where any person receiving notice has given a counter notice and the squatter’s registration as proprietor follows an application determined by reference to whether any of the conditions in Schedule 6, paragraph 5 of the Land Registration Act 2002, apply (Schedule 6, paragraphs 9(3) and (4) of the Land Registration Act 2002).

 

Where the exception operates and the charge affects additional property, the squatter will be able to require the chargee to apportion the amount secured by the charge between the land in the squatter’s new registered title and the remainder of the property subject to the charge (Schedule 6, paragraph 10 of the Land Registration Act 2002). The apportionment will be on the basis of

 

the amount of debt secured by the charge at the time the squatter applies for apportionment

the respective values of the land that was adversely possessed and the rest of the property that is subject to the charge

The chargee must discharge the squatter’s estate on payment of the amount apportioned to that estate and their costs. The chargor’s liability to the chargee will be reduced accordingly. Rules 194A to 194G of the Land Registration Rules 2003 set out in detail the procedures relating to apportionment. The procedures can only be instigated once the squatter has been successfully registered. Land Registry plays no part in them. They require the squatter to give notice to the chargee requesting that the charge be apportioned. The squatter is required to provide valuations of the land comprising the new registered title and the other property subject to the charge.

 

However, the exception may itself be qualified. Law Com 271 suggests that if the squatter’s right to be registered preceded the registered charge and the squatter was in actual occupation of the land at the time the charge was created, that right to be registered might be an overriding interest (Schedule 3, paragraph 2 of the Land Registration Act 2002) and so take priority over the charge (Law Com 271, paragraphs 14.64 and 14.76), with the result that the estate is vested in the squatter free of the charge.

 

Where the charge is not a registered charge (a common example would be a charging order), then the general principle set out in Registration applies. But if the squatter’s right to be registered is a proprietary interest, as Law Com 271 suggests may potentially be the case (Law Com 271, paragraphs 14.64 and 14.76), and the right precedes the charge, then the ‘basic rule’ as to priority (section 28 of the Land Registration Act 2002) would allow for the squatter, on registration, to take free of that charge. If, however, the squatter takes subject to the charge and it affects other property as well, then the squatter may require apportionment (Schedule 6, paragraph 10 of the Land Registration Act 2002 and rules 194A to 194G of the Land Registration Rules 2003 apply equally to charges that are not registered charges).

 

6. Objecting to the squatter’s application

Any person wishing to object to the squatter’s 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 (rule 19 of the Land Registration Rules 2003). 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 three addresses for service in total (rule 198 of the Land Registration Rules 2003). Form NAP may be used for this purpose. The objection might be on the grounds that the squatter is not entitled to apply under Schedule 6 because, for example, there has not been adverse possession (ie factual possession, with the requisite intention and without the owner’s consent) or that the possession has not been for the necessary period of time (normally 10 years) (See Adverse possession – the essentials. Sometimes the registered proprietor (or other recipient of notice) will want both to object, for example on the grounds that there has not been 10 years’ adverse possession, and to ensure that, if they lose that argument, they can take advantage of Schedule 6, paragraph 5 so that the squatter’s application will be rejected unless any of the three conditions in that paragraph is met. In such a case, the objector must return the form NAP with two boxes ticked. They must both object, and require the application to be dealt with under paragraph 5 (see Giving counter notice to the registrar in response to notice). They must give the grounds of their objection. They do not need to say at this stage why they believe that none of the three conditions applies, but it would usually be convenient to do so if the squatter’s application indicates an intention to rely on one of them.

 

If a person given notice by the registrar (Under Schedule 6, paragraph 2 of the Land Registration Act 2002) objects to an application but does not indicate on form NAP that they require the application to be dealt with under paragraph 5, they will lose the opportunity to request that the application be dealt with under paragraph 5 once the 65 business day notice period has expired. In that case, it becomes immaterial whether or not the squatter can prove one of the three conditions. The squatter will be entitled to be registered as proprietor unless the objection is successful (Schedule 6, paragraph 4 of the Land Registration Act 2002).

 

If an objection is received, whether in response to the registrar’s notice or otherwise, then the application cannot be determined until the objection is disposed of, unless the registrar is satisfied that the objection is groundless (sections 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 two 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). This will be done 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.

 

7. Giving counter notice to the registrar in response to notice

A person receiving the 65 business day notice sent under Schedule 6, paragraph 2 of the Land Registration Act 2002 may choose to give counter notice to the registrar, requiring the application to be dealt with under Schedule 6, paragraph 5 of the Land Registration Act 2002. The counter notice has to be in form NAP, a copy of which is sent out with the notice: it must be completed and returned to the registrar within 65 business days (rules 189 and 190 of the Land Registration Rules 2003).

 

While form NAP must be used for giving counter notice, it is not necessary to use the particular copy originally sent by us. Suppose, for example, that the registered proprietor is notified by us of an application by a squatter and responds by lodging an objection using the copy of form NAP enclosed with the notice. They then decide, before the 65 business days have expired, that they wish also to give counter notice. They should do this using another copy of form NAP (which they can obtain from us if they wish).

 

If the squatter has not stated in their form ADV1 that they are relying on one of the three conditions in paragraph 5, then their application will be rejected when we receive the counter notice.

 

If the squatter is relying on one of the three conditions and counter notice is given, we will at this point (and not before) consider whether or not the statutory declaration or statement of truth sets out any facts supporting reliance on the condition and shows an arguable case for the condition being met. If we decide that it does not, the application may be rejected. If we are satisfied that it does, we will contact the people who gave the counter notice. If they dispute that the condition has been met, they can then object to the application on this ground (if they have not done so already). Unless the objection is groundless or disposed of by agreement, the registrar will refer the matter to the tribunal for resolution as described above in Objecting to the squatter’s application. If the people who gave the counter notice do not object, the squatter will be registered as proprietor.

 

8. The three conditions in paragraph 5 of Schedule 6

Even if the registrar receives a counter notice stating that the recipient of the notice wishes the application to be dealt with under Schedule 6, paragraph 5 of the Land Registration Act 2002, the squatter is still entitled to be registered if any one of the following three conditions is met (Schedule 6, paragraph 5 of the Land Registration Act 2002).

 

8.1 The first condition

The first condition is that it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the circumstances are such that the squatter ought to be registered as the proprietor.

 

This condition is intended to embody the equitable principles of proprietary estoppel as these have developed. The squatter will have to establish that an equity has arisen in their favour. To this end, they will need to show that:

 

in some way the registered proprietor encouraged or allowed the squatter to believe that they owned the land in question

in this belief, the squatter acted to their detriment to the knowledge of the proprietor

it would be unconscionable for the proprietor to deny the squatter the rights which they believed they had (Law Com 271, paragraph 14.40)

Examples where this condition might apply are:

 

where the squatter has built on the registered proprietor’s land in the mistaken belief that they were the owner of it and the proprietor has knowingly acquiesced in their mistake

where neighbours have entered into an informal sale agreement for valuable consideration by which one agrees to sell the land to the other

the ‘buyer’ pays the price, takes possession of the land and treats it as their own

no steps are taken to perfect their title and there is no binding contract (Law Com 271, paragraph 14.42)

8.2 The second condition

The second condition is that the squatter is for some other reason entitled to be registered as the proprietor.

 

Examples where this condition might apply are:

 

where the squatter is entitled to the land under the will or intestacy of the deceased proprietor

where the squatter contracted to buy the land and paid the purchase price, but the legal estate was never transferred to them (Law Com 271, paragraph 14.43)

8.3 The third condition

The third condition is that the squatter has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined under section 60 of the Land Registration Act 2002 and the estate to which the application relates was registered more than a year prior to the date of the application.

 

An example of where this condition might apply is where the dividing walls or fences on an estate were erected in the wrong place (Law Com 271, paragraph 14.46).

 

9. Further application by the squatter for registration

If the squatter’s application was rejected as a result of a counter notice being given and none of the three conditions in paragraph 5 of Schedule 6, Land Registration Act 2002 being met, they will be able to reapply to be registered as proprietor, provided they remain in adverse possession for a further two years from the date of rejection of the previous application (Schedule 6, paragraph 6 of the Land Registration Act 2002). This time the squatter will be entitled to be registered as proprietor except where:

 

the squatter is a defendant in proceedings for possession

there has been judgment for possession given against the squatter in the last two years

the squatter has been evicted pursuant to a judgment for possession (Schedule 6, paragraphs 6 and 7 of the Land Registration Act 2002)

This means that the registered proprietor, registered chargee and any other people given notice of the rejected application have at least two years in which to take steps either to evict the squatter (or at least to start proceedings to do so) or to legitimise their occupation by, for example, negotiating a licence under which the squatter can stay as licensee.

 

9.1 Making the application

You must make the application in form form ADV1 accompanied by a statement of truth or statutory declaration which:

 

is made by the squatter not more than one month before the date of the application

provides evidence (together with any supporting statements of truth or statutory declarations) of adverse possession for not less than two years from the date of rejection of the original application to the date of the present application

if the application relates to part only of the land in a registered title, exhibits a plan enabling the extent of the land to be identified on the Ordnance Survey map, unless the previous rejected application related only to that part, or that part is referred to by reference to the title plan and this enables it to be identified

contains full details of the previous rejected application

contains confirmation by the squatter that to the best of their knowledge the restriction on applications in paragraph 8 of Schedule 6, Land Registration Act 2002 does not apply (the proprietor is not an enemy or held in enemy territory or suffering from mental disability or physical impairment)

contains confirmation by the squatter that to the best of their knowledge the estate is not, and has not been, subject to a trust (other than one where the interest of each of the beneficiaries is an interest in possession)

contains confirmation by the squatter that Schedule 6, paragraph 6(2) of the Land Registration Act 2002 does not apply (no possession proceedings, judgment for possession or eviction under a judgment for possession) (rules 188(1)(a) and (3) of the Land Registration Rules 2003)

You should also send any additional evidence which is thought necessary to support the claim (rule 188(1)(b) of the Land Registration Rules 2003). We will need only certified copies of deeds or documents you send to us with Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

 

You must list all the documents accompanying the application on form ADV1 and pay the appropriate fee under the current Land Registration Fee Order. If you do not complete the form correctly, the form ADV1 may be returned to you.

 

If a statement of truth is used it may be in form ST1. The comments made in respect of this form in Making an application for registration on the basis of adverse possession apply equally here. In particular, using the form should help you to ensure that nothing has been overlooked.

 

9.2 Notices

We will give notice of the further application, under rule 17 of the Land Registration Rules 2003, to:

 

the registered proprietor of the estate affected

the registered proprietor of any registered charge on that estate

where the estate is leasehold, the registered proprietor of any superior registered estate

any person who has been registered as a person to be notified under paragraph 2 of Schedule 6, Land Registration Act 2002, and

any other person the registrar considers appropriate to notify

The notice will allow 15 business days for reply. A person given notice may either:

 

consent to the application

object to the application

If no objection is received within the time limit from any of the persons given notice, the squatter will be registered as proprietor of the estate of which they were in adverse possession.

 

9.3 Objecting in response to notice

A person may object to the further application by the squatter where they do not accept that the squatter has remained in adverse possession for at least two years or where they are able to challenge any of the statements that the squatter is required to make in their second statement of truth or statutory declaration – see Making the application.

 

The objection must be made by written statement delivered to the registrar signed by the objector or their conveyancer. It must state the grounds for the objection and give the objector’s full name and an address for service (rule 19 of the Land Registration Rules 2003). 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 three addresses for service in total (rule 198 of the Land Registration Rules 2003).

 

If an objection is received, then the application cannot be determined until the objection is disposed of, unless the registrar is satisfied that the objection is groundless (section 73 of the Land Registration Act 2002). If not groundless, the registrar must give notice of the objection to the squatter (section 73(5) of the Land Registration Act 2002). If the matter cannot be settled by agreement between the two parties, the registrar will refer the matter to the tribunal for resolution as described in Objecting to the squatter’s application (section 73 of the Land Registration Act 2002).

 

9.4 Registration

If the squatter’s application is approved, they will be registered as proprietor as described in Registration.

 

10. Application to be registered as a person to be notified of a squatter’s application

A person who has an interest in a registered estate that would be prejudiced by the registration of a squatter may apply to the registrar to be registered as a person to be notified under Schedule 6, paragraph 2(1)(d) of the Land Registration Act 2002 (rule 194 of the Land Registration Rules 2003).

 

You must make the application in form ADV2 and pay the correct fee under the current Land Registration Fee Order. The applicant must satisfy the registrar they have such an interest.

 

If the application is approved, we will make the following entry in the proprietorship register:

 

“[Name] of [address] is a person entitled to be notified of an application for adverse possession under paragraph 2 of Schedule 6, Land Registration Act 2002.”

 

To remove the entry, you may make an application in form AP1 at any time. No fee is payable. As a safeguard, if the application is not made by a conveyancer, we will give notice of the application to the person named in the entry allowing 15 business days for reply.

 

11. Leasehold matters

11.1 Adverse possession of registered leasehold land

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

 

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.

 

11.2 Encroachments onto registered land from leasehold land

“It is laid down in all cases – whether the inclosed land … belongs to the landlord or to a third person – that the presumption is, that the tenant has enclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord’s title … The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant has made it for his own benefit.” Kingsmill v Millard (1855 11 Exch 313, 318, Parke B).

 

At least on one view, this presumption means that there is no adverse possession by a tenant and that any application under Schedule 6 to the Act should be by the tenant’s landlord (See the decision of the deputy Adjudicator in Dickenson v Longhurst Homes Ltd (REF/2007/1276)).

 

However, the presumption, by its nature, can be rebutted by evidence that the tenant actually intended the encroachment to be for their own benefit; and we are prepared to treat the fact that the application has been made as sufficient evidence of this intention for us to proceed with the application. Furthermore, there is another view, which is that the presumption is only concerned with who might have acquired title at common law to the estate concerned and does not alter the fact that the tenant is in adverse possession, and so is irrelevant where the application is one under Schedule 6.

 

If an application is made under Schedule 6 by a tenant and it is not clear from the application that the applicant is aware of these points, we shall write to make them and ask if they still want to proceed with the application.

 

If the application proceeds and the stage is reached where notices are served, notice will be served on the tenant’s landlord that refers to the presumption and to the points made above.

 

Particularly where the encroachment is onto other land belonging to the landlord but not included in the demise, as opposed to being onto land belonging to a third party, the tenant may be content to accept that the presumption applies. In this case, you can apply on form FR1 for first registration of their leasehold title to the land concerned. It is necessary, for the purposes of this application, that there is more than seven years of the applicant’s lease term still to run: section 3(3) of the Land Registration Act 2002.

 

12. 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 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.

 

12.1 Requirements

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

 

it is made by an individual 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 or signs it on someone’s behalf, the conveyancer must sign in their own name and state their capacity

see section Signature by a conveyancer

12.2 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 © appeared to me to understand the declaration of truth and the consequences of making a false declaration.’

12.3 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 © appeared to me to understand the declaration of truth and the consequences of making a false declaration.’

12.4 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

must state the capacity in which they sign and where appropriate the name of their firm or employer.

12.5 Form ST1

Form ST1

[ThedaBara]

Hi,

I am writing to see if you can give me some advice with the following problem:

 

I took over tending an allotment garden in 1996 from an old lady who had planted the boundary hedging around the plot of land not long after the housing estate was built before the second world war.

 

 

The lady died a few years after passing the care of this land to me.

 

 

Halton Council never contacted me regarding the use of this land.

The housing estate was originally council owned and is now a mix of privately purchased and housing trust owned.

 

Halton Housing Trust took ownership over from the council around 2004

and they also have never contacted me regarding use of this land.

 

 

I have therefore maintained the land for some 20 years now,

cutting the boundary hedging and growing vegetables for myself and my family.

 

 

A neighbour has been sharing these maintenance responsibilities for the past year.

He has erected housing for 3 chickens approximately 6 months ago and they are now living on the allotment,

we are also in the process of building raised growing beds and paved foot paths.

 

Just as another piece of background information,

I started a bike project in 2007 on the land adjacent to the allotment.

 

 

The setting up of this project took approximately 18 months during which time I had contact with Halton Housing Trust regarding the permission for use of this land.

 

 

At the time it was mentioned about the allotment and the CEO of HHT at the time stated

that he knew I was using the neighbouring land as an allotment and in said that this was fine with him

for me to care for this land rather than it been neglected.

 

Halton Housing Trust have now sent me a letter of trespass and stating I have 14 days to remove all property

and buldings from this land, which consist of greenhouses a small shed and the henhouse.

They also state if I wish to contest this I have 7 days to do so in writing.

 

 

I received this letter on 20th of April 2016

and would appreciate any advice you can give as I am very upset

and angry about this situation.

 

Regards

Carl

Just a thought; did the land belong to the lady who gave it to you before she passed away? If so, you can defend any action against you by citing proprietary estoppel...

 

The permission relates to the other land and not the allotment land you have been tending... unless the council gave you permission to use the allotment in writing, they don't have a case...

 

I would write back to them saying that you will be bringing a defence by way of Schedule 6 of the Land Registration Act 2003 in that it would be unconscionable for them to evict you from the land due to the length of time you have occupied it and also by way of an estoppel.

 

You need to ensure that the person with the chickens is there by way of your permission and not that of the council and that they don't have a separate license to use the land. Don't allow the council access to the land... keep it locked... they have to take you to court to evict you. Good luck! TB

[ThedaBara]

I believe any permission to use the land would need to be in writing... it's not enough for them to state that they knew the land was being occupied... unless they have a written agreement with the occupant of the land, there is no evidence and the occupant of the land can deny any such permission. They would also need to prove that the occupant has not had sole use of the land... Have they accessed the land at any time during the occupation? If someone uses the land without let or hindrance, then after ten years they can make an application to Land Registry for Adverse Possession and it's up to the land owner to prove the squatter has not had sole use of it during that time. TB

[BazzaS]

I believe any permission to use the land would need to be in writing... it's not enough for them to state that they knew the land was being occupied... unless they have a written agreement with the occupant of the land, there is no evidence and the occupant of the land can deny any such permission. They would also need to prove that the occupant has not had sole use of the land... Have they accessed the land at any time during the occupation? If someone uses the land without let or hindrance, then after ten years they can make an application to Land Registry for Adverse Possession and it's up to the land owner to prove the squatter has not had sole use of it during that time. TB

 

1) is it registered land?

2) it isn't "adverse possession" once the permission (in effect, a licence) was given.

[ThedaBara]

Hi Bazza… I wonder if permission was sought and granted, (for the allotment land), rather than the extra land adjacent to the allotment..and was it in writing or a vague verbal agreement?

TB

[Ethel Street]

At the time it was mentioned about the allotment and the CEO of HHT at the time stated

that he knew I was using the neighbouring land as an allotment and in said that this was fine with him

for me to care for this land rather than it been neglected.l

 

That sounds to me a long way short of 'being given permission'. I assume it was never put in writing by either of you. If it were me I think I would have 'forgotten' this passing conversation from 11 years ago by now....

 

In any case, the lengthy practice guide posted earlier appears to say that you cannot claim adverse possession if you have occupied it under a "licence" from the owner - it doesn't say with "permission" from the owner. I'm no expert on this but surely a "licence" has to be something a bit more formal than the conversation you describe? That's why you need specialist legal advcie.

[ThedaBara]

Agree… but it's quite simple… if you use the land without let or hindrance and as if it were your own, and especially if you have fenced it to exclude all others, then after 10 years you may apply for adverse possession… get a form from Land Registry (ADV1)… You only need a solicitor to witness your signature at a commissioner of oaths, etc… The land owner must then object on form NAP… he must object and also tick the box that states he wishes to rely on paragraph 5 of Schedue 6 of the Land Registry Act 2002. If he doesn't object within 65 business days, then the land automatically transfers. If he does object, then the matter is referred to the court, if a resolution cannot be arrived at by mediation. You must state that there is proprietary estoppel and that it would be unconscionable for the land owner to evict you from the land, as it was given to you by the previous landowner. It can be done without a solicitor initially, but if it goes to court, then a barrister would be advised as they know how to ensure success… a LIP is at a disadvantage unless they are fully aware of the rules surrounding adverse possession. Good Luck… you have nothing to lose by making the application… only if it goes to court, then you will have to decide whether or not to continue… I believe you have a very good case though. TB