B P Collins
Adverse possession: Key considerations for Developers
Adverse possession is the mechanism by which a person who is not the legal owner of land can acquire title to it through long occupation. According to B P Collins’ property disputes team, the most common adverse possession scenario is a fence or hedge erected in slightly the wrong position by a predecessor in title, enclosing a strip of the neighbouring registered title, with both sets of owners unaware of the error for years or decades. By the time the mistake is discovered, typically during the course of development, the occupier of the strip may have accumulated enough time to make a legal claim to ownership.
What can be done? Investigate physical occupation before acquiring land:
Before exchange, commission a boundary survey and physically inspect the extent of the land. Where there is any discrepancy between the title plan and the physical features,( for example, a fence in an unexpected position, a strip enclosed within a neighbouring boundary, a feature that does not match the deeds) investigate before completion. Make enquiries of the seller about any neighbouring occupation that might support an adverse possession claim. Consult neighbouring owners – the cost of pre-acquisition investigation is negligible compared with the cost of a dispute that has already become entrenched.
Monitor the boundaries of large landholdings regularly:
The risk of adverse possession arises most acutely at the margins of landholdings – distant corners of fields, strips between development plots, land abutting roads and watercourses. A systematic programme of boundary inspection, combined with an up-to-date record of all registered titles and the physical features on the ground, is the most effective form of protection. Where land is being left occupied by third parties pending development, consider whether the basis of that occupation has been formally documented, and, if there are no formal documents in place, consider regularising and documenting the arrangement, to lessen the risk of an adverse possession claim by the occupier.
Take care with boundary features:
The most common adverse possession fact pattern is a fence or hedge erected in the wrong position, enclosing a strip of the neighbouring title. If you are carrying out works near a boundary, ensure that new fences, walls or hedges are positioned accurately by reference to the title deeds and, where necessary, by reference to a surveyor’ s measurement. It is important to check boundary features on acquisition and to investigate any feature that does not correspond to what the title deeds show.
Consider an application for a determined boundary:
Where there is ongoing uncertainty about the precise position of a boundary, an application for a determined boundary under section 60 of the LRA 2002 can provide permanent resolution. Unlike the general boundaries shown on the filed plan, a determined boundary is conclusive as to the precise legal line. The process requires a detailed plan prepared by a qualified surveyor and the consent or notification of neighbouring owners, but it provides a degree of certainty that the general boundaries regime does not.
Explore Alternative Dispute Resolution before committing to litigation:
Adverse possession disputes are frequently disproportionately expensive relative to the value of the land in issue. Mediation offers a faster, cheaper and less relationship-destructive route to resolution in a significant proportion of cases and should be considered before
proceedings are issued.
Adverse possession law is technically demanding and highly fact-specific. The applicable regime requires careful legal analysis before any position is advanced or resisted. B P Collins’ specialist property disputes team acts for both applicants and registered owners in adverse possession claims, from initial advice on the strength of a position through to contested applications before the First-tier Tribunal( Property Chamber) and proceedings in the civil courts.
For further advice and information, please email B P Collins’ property disputes team at enquiries @ bpcollins. co. uk or call 01753 889995. To read the full article please scan the QR code.
28 www. britbuild-magazine. co. uk