england-and-wales real-estate adverse-possession
Can one claim adverse possession by simply securing an existing boundary in England?
<p>A small (.5Acre) plot of land sits adjacent to our property boundary, officially designated &quot;grazing land&quot; it is in practice wild scrubby, sometime-flooded ground that sits between our garden and the road in the countryside.</p>
<p>We would love to use it so we can keep it tidy and plant screening but it appears to belong to our local county council and their stated policy is not to sell council-owned land<sup>*</sup>, which would be our preferred option.</p>
<p>We had been considering the long game and adverse possession claims. It is already fenced with an unlocked gate, so it seems adding another fence would be rather foolish.</p>
<p>If we lock the existing gate and then start tending to the land and boundary - keeping the fence in good repair, planting and weeding, etc - would this be recognised as maintaining a private boundary?</p>
<hr />
<p><sup>*</sup><em>In fact their policy is they will only sell land designated as surplus, however you cannot request or notify land for consideration which means in practice small, low value plots are never going to be processed as such</em></p>

<p>On the assumption like most, if not all, local government owned land this plot is properly registered, then a successful claim for a ten-year adverse possession will depend on whether or not the council (or others) opposes the claim. If this opposition is successful then a subsequent twelve-year adverse possession <em>may</em> succeed.</p>
<p>See <a href="https://www.legislation.gov.uk/ukpga/2002/9/schedule/6?timeline=false" rel="nofollow noreferrer">Schedule 6</a> of the Land Registration Act 2002, which is summarised by the HM Land Registry's <a href="https://www.gov.uk/government/publications/adverse-possession-of-registered-land/practice-guide-4-adverse-possession-of-registered-land" rel="nofollow noreferrer">Practice Guide 4</a>:</p>
<blockquote>
<ul>
<li><p>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</p>
</li>
<li><p>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</p>
</li>
<li><p>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</p>
</li>
<li><p><strong>if the application is opposed, it will be rejected</strong> unless either</p>
</li>
</ul>
<blockquote>
<ul>
<li><p>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</p>
</li>
<li><p>the squatter is for some other reason entitled to be registered as proprietor</p>
</li>
<li><p>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.</p>
</li>
</ul>
</blockquote>
</blockquote>
<p>However, if it is opposed then all may not be lost...</p>
<blockquote>
<ul>
<li>in the event that the application is rejected but the squatter remains in adverse possession for a further 2 years, they will then be able, subject to certain exceptions, to reapply to be registered as proprietor and this time will be so registered <strong>whether or not anyone opposes the application</strong></li>
</ul>
</blockquote>
<p>The &quot;certain exceptions&quot; are at paragraph 6(2) of the Schedule:</p>
<blockquote>
<p>...a person may not make an application under this paragraph (<em>i.e. a 10 + 2 years claim</em>) if—</p>
<p>(a)he is a defendant in proceedings which involve asserting a right to possession of the land,</p>
<p>(b)judgment for possession of the land has been given against him in the last two years, or</p>
<p>(c)he has been evicted from the land pursuant to a judgment for possession.</p>
</blockquote>
<p>Whether &quot;simply securing an existing boundary&quot; is enough will depend, as is often the case, on the particular circumstances to establish factual possession:</p>
<blockquote>
<p>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.  (<em>para 2.1 of Practice Guide 4</em>)</p>
</blockquote>
