Adverse Posession of Unregistered Land

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    Adverse Posession of Unregistered Land

    Hi everyone - I've just joined!

    After much reading, I believe I'm mostly up to speed on what my options are. I'd appreciate a check however, to see if I've missed/misunderstood anything. Hence my posting here.

    There is a relatively small plot of land (probably around 10x10 metres) with a small derelict building directly adjoining our property (south UK), on the other side of our wall. We've tended to this piece land for around 18 years now, and used it to store various equipments over the years.

    Since there are several trees on the plot which are starting to grow quite large and infringe our property, I decided to search for the owner of the land to see if these trees could be trimmed back.

    I have ascertained from HM Land Registry that the land is defininitely unregistered, and definitely not owned by any neighbouring properties (I have personally checked the title plans and interviewed the property owners).

    Although we hadn't previously considered it, we are contemplating making a claim for adverse posession of this land, as we have been the sole tenders of this land for well in excess of the required 10 years, and I believe we meet the test of having used it 'like an owner would'.

    We are very aware that even if the land is unregistered, the land can still (and probably does) have an owner (although our attempts to track down said owner have turned up a blank). We're also aware that if the land does have an owner, even if unregistered, the adverse posession claim could get expensive (i.e. the owner could object => solicitors' fees, etc). Such a claim would also presumably alert the owner to the fact they own this land.

    Given that the land is certainly unregistered, and that we don't want to go through the expensive hassle of making a claim if the owner will object, I see myself as having three options:

    (1) Make an adverse posession claim, after somehow ascertaining that the land most definitely does not have a (locatable) owner, thus making the adverse posession claim much easier (i.e. no chance of an objection from a land owner in that case).

    (2) Somehow find the owner of the land, and make them an offer for it.

    (3) Somehow find the owner of the land, and do nothing (leave the land as is without contacting the owner).

    All of these options rely upon ascertaining whether the land has an owner that can be located/contacted or not. I appreciate we can still claim if the land does have an owner, but as I've mentioned above, we don't want to go through the hassle of this and would probably leave it as-is.

    My main question is, if we did make a claim for adverse posession, what procedure would HM Land Registry follow in order to find the owner of the land? They would presumably do everything I have already done (SIM search, check local properties, etc), and presumably draw a blank (unless they have some source that is unavailable to the public + a solicitor, i.e. things I have already tried).

    I'd rather be on the front foot, and know whether the land has an owner or not, rather than finding out from Land Registry after starting the claim, and potentially stirring up trouble. Does there exist some person(s) specially equipped to trace the owners of such land?

    Cheers,

    Cumulus

    #2
    You do not really want, or in fact need, to follow any of your options. Just get on and make the application. Simply making the application should not be too expensive. You can do it yourself, but legal advice is recommended because if you inadvertently say the wrong thing it can be difficult to backtrack. Shop around for a quote. If the "paper" owner does object you can always withdraw your application. However, from what you say an objection seems unlikely. The Land Registry will give notice to anyone they think may have an interest in the land. In practice that is only likely to be the owners of neighbouring land. If the land is unregistered the Registry are unlikely to know who the paper owner is simply because it is unregistered. The title to unregistered land is private. They may though be familiar with the owners of large unregistered holdings. If the land adjoins a park or railway land they will give notice to the local authority or Network Rail. So, do not worry about anyone objecting unless and until it happens.

    More important is being confident that (absent any objection!) your application has a reasonable chance of success. You need to convince the Registry that you have been in adverse possession for at least 12 (not 10) years. Can we have more detail about what you have been doing on the land and how long you have been doing it? You say the area is the other side of a wall. Whilst not fatal to a claim, when an application is made in respect of land adjoining or near to that of the claimant the Registry like to see evidence that the two parts form some sort of a whole. If they do not, then the use has to be rather more than just keeping the plot tidy. Do you use the building for anything? Can your possession be confirmed by a neighbour?

    Comment


      #3
      Many thanks for your detailed response Lawcruncher.

      Admittedly, we have not constructed anything on the land, nor have we erected a fence (I am aware that although not requirements, these are helpful to a claim). We do however have a motion-activated side-security light that illuminates the plot of land, so I suppose this could support the fact that we have been 'securing/guarding' the land.

      In addition to keeping the plot tidy, we have used the land as storage for wood and other materials. The 'boundary wall' is so low in places that one can access the land from our property.

      One interesting point is my comment regarding the trees overhanging our property - We would be willing (and obliged) to assume responsibility for these if we were to be able to posess the land (a tree surgeon will not deal with the trees unless the land owner gives consent, which obviously cannot currently be done). Then again, this might make no difference whatsoever. Nonetheless, it's an interesting situation.

      In regards to our neighbours - I am unsure how they would view our application. Whilst they have certainly seen us using the land for this time, whether they would actually be willing to support us in posessing the land and state this formally is another matter. Do the Land Registry interview neighbours as part of the process?

      Comment


        #4
        On the basis of the details you have supplied I would say there is a fairly good chance that an application would be rejected. I do not think you have done enough to indicate adverse possession. You need to consider doing some or all of the following: fencing the plot; removing the wall at least in part and perhaps forming a path which leads from your land to the plot and then continues to, say, a rotary drier or some feature; whether the path leads to it or not, putting up a clothes line or rotary drier; erecting some feature such as a gazebo, summerhouse or shed; doing some serious gardening such as laying a lawn, setting out flower beds or borders or growing vegetables; doing something with the derelict building if that is possible. The preceding are just suggestions; you do not need to do all of them (though fencing is highly recommended) and other things are possible. The idea is to show that the plot is an integral part of your garden which is actually used, rather than a bit of land you keep clear to stop it being an eyesore. Whatever you do needs to be allowed to settle in before you make an application so that it does not look new when the Land Registry surveyor turns up.

        Basically some expense and/or effort is needed and you have to make a decision as to how much of either you are prepared to risk. In that respect bear in mind that if an application fails it will not stop you using the land. The only way you can lose the land is if the "paper" owner turns up and proves he has a better title than you.

        You also need to bear in mind that extending your garden may need planning permission.

        I have never heard of the Land Registry interviewing neighbours, though that does not mean that if the surveyor spots one during his inspection he may not have a quiet word. Statements from neighbours or others who can confirm the relevant facts are not essential.

        Comment


          #5
          Many thanks Lawruncher. We might apply in a few years in that case.

          If we were successful, I believe we'd be awarded a posessory title (?). Am I right in thinking that the only person that could beat a possessory title is the original paper owner, if he/she were ever to surface? Does the owner of a possessory title have any protection against the original owner if they do resurface after the possessory title has been awarded?

          Comment


            #6
            Originally posted by Cumulus View Post
            If we were successful, I believe we'd be awarded a posessory title (?)
            Correct.

            Originally posted by Cumulus View Post
            Am I right in thinking that the only person that could beat a possessory title is the original paper owner, if he/she were ever to surface?
            No. If you get registered it will indicate that the Land Registry are satisfied that the paper owner's title has been extinguished.

            Originally posted by Cumulus View Post
            Does the owner of a possessory title have any protection against the original owner if they do resurface after the possessory title has been awarded?
            Yes - see answer to previous question. However, registration does not cancel the rights of any third party.

            Comment


              #7
              Many thanks once again Lawcruncher.

              Originally posted by Lawcruncher View Post
              However, registration does not cancel the rights of any third party.
              So this would be some third party that already has access to / use of the land for whatever reason, e.g. some sort of installation (waterworks, etc) on the land? And this third party cannot be prevented from continuing with this activity?

              What other privileges does a Possessory Title not grant that an Absolute Title would?



              Comment


                #8
                Originally posted by Cumulus View Post
                So this would be some third party that already has access to / use of the land for whatever reason, e.g. some sort of installation (waterworks, etc) on the land? And this third party cannot be prevented from continuing with this activity?
                Correct.


                Originally posted by Cumulus View Post
                What other privileges does a Possessory Title not grant that an Absolute Title would?
                It is not that it has less privileges, but that it may be subject to things not shown on the title. An important one is restrictive covenants. A paper owner may, for example, have agreed not to build on the land or use it for a specific purpose. That only becomes relevant if you want to develop the land. The position can be covered by indemnity insurance.

                The essential point is that you get the land for free but without knowing what rights it is subject to.

                Comment


                  #9
                  Thanks for your response once again, much appreciated.

                  Originally posted by Lawcruncher View Post
                  A paper owner may, for example, have agreed not to build on the land or use it for a specific purpose
                  Originally posted by Lawcruncher View Post
                  The essential point is that you get the land for free but without knowing what rights it is subject to.
                  I am surprised that Land Registry would be unable to tell me, at the time of granting the possessory title, what restrictions the land may have attached to it. For what it's worth, I'm not planning to build on the land.

                  Is it possible for the land to have no such restrictions, and if further to this, no third party has any interest in the land, it's de facto the same as an Absolute Title?

                  Comment


                    #10
                    Originally posted by Cumulus View Post
                    I am surprised that Land Registry would be unable to tell me, at the time of granting the possessory title, what restrictions the land may have attached to it.
                    If the property is not registered the Land Registry cannot know what restrictions affect the land because the title to unregistered land is private.

                    Originally posted by Cumulus View Post
                    Is it possible for the land to have no such restrictions, and if further to this, no third party has any interest in the land, it's de facto the same as an Absolute Title?
                    Not really because land registered with absolute title can be subject to restrictions. The difference is that with absolute title you know what restrictions affect the land, but with possessory title you do not until someone applies to get them noted on the register.

                    Comment


                      #11
                      Many thanks once again.

                      Originally posted by Lawcruncher View Post
                      ...but with possessory title you do not until someone applies to get them noted on the register.
                      Does this mean that somebody can apply for third-party use of the land after a possessory title has been granted, even if they did not have these rights (and/or were not in the process of obtaining these rights) prior to the granting of the title?

                      Comment


                        #12
                        Rights can be acquired over registered land by prescription whatever class of title it is registered with.

                        Comment


                          #13
                          Couple of things. Were you in occupation before 13th Oct 2003? This is significant to one of your questions above.

                          Regarding your main issue, the trees. If its anything like up here, the more 'itinerant' type of chainsaw lads will follow your instructions for pound notes.

                          I agree that fully incorporating this land as 'yours' would be a sensible next step.

                          Finally, did HMLR send you a print out of all the titles around your property, usually as little pink shapes? And this land definitely is not pink?

                          Comment


                            #14
                            Originally posted by wfd_property View Post
                            Were you in occupation before 13th Oct 2003? This is significant to one of your questions above.
                            Not relevant if the land is unregistered. See section 96(1) of the LRA 2002.

                            Comment


                              #15
                              Originally posted by wfd_property View Post
                              Couple of things. Were you in occupation before 13th Oct 2003? This is significant to one of your questions above.
                              Hi wfd_property, sorry for my late response.

                              We have indeed been in occupation way before October 2003, although as Lawcruncher has mentioned above I don't think this matters if the land is unregistered (which it most definitely is).

                              Originally posted by wfd_property View Post
                              Finally, did HMLR send you a print out of all the titles around your property, usually as little pink shapes? And this land definitely is not pink?
                              After confirming the land was unregistered via my own research, I went ahead and did a SIM search for the land in question, with the area precisely highlighted on an OS map. HMLR's letter response stated that "... No application for first registration is shown on the index map" and "...We therefore hold no records in respect of the property". That was all I received (no print out of titles, etc).

                              Separate to this, I sourced the title plans of all surrounding properties from HMLR, and can confirm that none of the plan areas (which are clearly marked in red on the plans) encompass the area in question. We are the only property that directly boders the area in question.

                              Comment

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