The Learning & Resource Section

Adverse Possession

Adverse Possession:

Adverse possession is the occupation of land that is taken to the exclusion of the original owner for a period of time. Adverse possession is far more than “squatting” because they must take the land as their own by essentially displacing the rights of the owner. Adverse possession almost extends this idea of squatting because it allows acquisition of title of land if the original land owner neglects his or her land for a long enough period of time.

The law on adverse possession exists because on a positive, it is more desirable for a property to not stand empty or abandoned as it could fall apart and damage could be caused to others or others’ property. Further, leaving a property empty for years has economic downfalls on the neighborhood as a whole, as it could stagnate the housing market. This places a duty on existing and potential land owners to take care of their land and further know what and who is going on their property. However, an owner should also have the right to do what they please with their property. And if they happen to abandon their property for a number of years, they should not lose their title.

Unregistered Land and Adverse Possession

The Limitation Act of 1980 was introduced by Parliament as a means of remedying the issue of squatters and adverse possession. Section 15(1) states that if no action to recover land can be brought after 12 years from the date of the action accrued. If a squatter took possession of land for 12 years or more then at that point they were able to claim title. The original owner would thus be dispossessed of the title to their land.

There is a two part test to determine whether or not a squatter is actually in adverse possession:

1. The paper owner must be dispossessed or have discontinued possession

i. There must be strong evidence that the paper owner has been dispossessed

ii. If the paper owner comes back before the limitation period is up then it can defeat the adverse possessor’s claim

2. The adverse possessor must take the land to the exclusion of others

i. The adverse possessor needs to demonstrate both factual possession and the intention to possess with the exclusion of others

Registered Land and Adverse Possession

With the introduction of the Land Registration Act of 2002, adverse possession drastically changed. The rules that apply in unregistered land do not apply in registered land. It has thus made it far more difficult for an adverse possessor to succeed in bringing a claim to change title of the land.

Schedule 6 of the Act states that a squatter must make an application with the Registrar after 10 years of adverse possession. The Registrar is then obliged to give notice to the registered owner to alert them of the intended claim to title on their estate. This would give them the opportunity to object the title registration.

Further, since September of 2012, a new law, section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act of 2012 has introduced a criminal offence of being a squatter on a residential property. It is unclear how this section will work in conjunction with the allowance of the 10 year possession claims under the Land Registration Act of 2002 but what is clear is the law has become stricter on adverse possession in registered land.

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