The saying ‘possession is nine tenths of the law’ is well known but, when it comes to land, is it really true?
Regardless of the circumstances in which the question of adverse possession arises, there are certain elements which must be satisfied before a claim can be brought.
What is possession?
In the context of a claim for adverse possession, the party claiming possession must be able to show both factual possession and an intention to possess the land.
Demonstrating factual possession will depend on the facts of each case, but a possessor will need to be able to show that they have been dealing with the land as an occupying owner might have been expected to deal with it; and that no one else has done so.
Although closely linked to factual possession, an intention to possess must be shown by unequivocal action. It is an intention to exclude all others (including the true owner of the land) from the land in question, and must be done in such a way that the owner of the land would know that someone else was in possession of it.
It may not be enough for the possessor to claim that they are the only user of a piece of land if it is also possible (by virtue of the location of the land) for others to use the land. Previously shared access roads may be an example of this, and using land only for access purposes may be insufficient to prove a claim for adverse possession.
If the basic elements of possession are made out, the possessor will also need to be able to show that the possession is adverse; i.e., that it is without permission. If the possessor is in occupation of the land with the consent of the owner, it is unlikely that a claim for adverse possession will be made out.
The party claiming adverse possession must also be able to show that they have been in adverse possession for the requisite length of time. For registered land this is 10 years, and for unregistered land it is 12 years.
In certain circumstances a land owner need not necessarily have been in adverse possession themselves for that length of time, and a period of adverse possession by the previous owner can be taken into account. However, generally, a formal declaration by the previous owner(s) is also required. It is usually not enough for the party making the application to say that a previous owner was in adverse possession in the same way they currently are, without supporting evidence.
Each claim for adverse possession will depend on its own facts, and the outcome of an application can never be guaranteed. If considering applying for adverse possession, it is always worth seeking legal advice.