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19th September 2019

Adverse possession issues still alive and kicking

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The recent case of King and Anor v The Benefice of Newburn in the Diocese of Newcastle (2019)[1] confirmed a couple of key points that residential property lawyers have long been aware of. First, establishing title to land by virtue of long possession (often described as ‘squatters’ rights’) is rarely straight forward, and secondly that each case very much turns on its own facts.

The system of land ownership in England and Wales is based upon the Land Registry holding a central, electronic register of title, which they constitute from the old paper documents produced to them to evidence that the original owner had legally acquired it.

Whilst this is all well and good, there are certain areas of land to which the original title deeds may have been lost or, in certain circumstances, where the land has been taken over by a third party and their acts of ‘possession’ can be used as the basis for an application to Land Registry.

In the King and Anor case, the facts rested on whether the owners of a Church could claim that they had been in possession of an underground crypt for many years and in so doing had overridden the claim to that crypt of the original owner’s descendants. If their claim was successful, they would have been free to deal with the site, which was earmarked for development. It was decided that although the Church controlled the physical access to the crypt, by means of a padlocked entry, they had not actually entered it at all, let alone occupied it in some sense as an actual owner might have done, and so couldn’t claim to have been in ‘possession’ of it.

Although Land Registry do now have the majority of land in the country registered on their electronic system, issues of possession do still crop up relatively regularly. For a simple application, the costs can be modest. However, if a dispute occurs then these can quickly escalate, particularly if the matter reaches the Lands Tribunal.

For more information, contact Simon Cooper on 01223 461155 or click here to email Simon.