Legal News | 1.02.23

Do squatters have rights?

With the rise of land and property values, many property owners and occupiers have sought advice on what their rights are when it comes to property or land ownership. Adverse possession is a topic Wansbroughs has significant experience with, having taken one case to the Court of Appeal (Parshall v Hackney [2013] EWCA Civ 240), the judgment of which has given rise to changes in the law proposed by the Law Commission and the Land Registry. It is armed with this knowledge that Wansbroughs provides this guidance about an increasingly prominent area of law.

What is adverse possession?

Adverse possession (also known as ‘squatters rights’) is a means of acquiring land. It requires factual possession of the land, with the necessary intention to possess and without the owner’s consent.  It must be shown that the squatter has been in adverse possession for at least 10 years (where the land is registered) for a claim to have a chance of succeeding.

Requirements for factual possession

Case law dictates that factual possession requires an appropriate degree of uninterrupted physical control. The question of what constitutes this will depend on the circumstances; however, as a general guide, if the alleged possessor has been dealing with the land as an occupying owner, this will satisfy the requirement.

Requirements to show an intention to possess

The squatter must show that they intended to possess the land. If you have factual possession, you will likely also have an intention to possess but the alleged possessor will need to show evidence that their use of the land also had the intention to exercise custody and control on for their own benefit. It should be noted that where the squatter is aware the land is not theirs, any adverse possession claim could be hindered.

Possession without the owner’s consent

Anything that would be deemed to show the owner had consented to the alleged possessor being in occupation of the land would mean a claim for adverse possession would likely fail. For example, a tenant occupying a property for their landlord, a licence, lease or any reference of their occupation on the registered title would constitute consent and the occupant cannot be treated as having been in adverse possession.

Recent case law

A 2023 High Court case Malik and others v Malik [2023] EWHC 59 (Ch) held that the occupier of a flat who asked the legal owner to pay the service charge did have a clear intention to possess the property despite the service charge request. It was deemed the obligation to pay the service charge was incidental of ownership of the lease, not of possession. The request by the squatter for the legal owner to pay the service charges therefore did not defeat the squatters claim for adverse possession.

Summary

Of course, alongside these requirements there are many restrictions on making an application for registration based on adverse possession and the registration process is complex with strict time requirements.

If you believe you may have a claim for adverse possession or you are the owner of land you feel is at risk of being adversely possessed, please do get in touch with the Dispute Resolution team who will be able to assist.