When the land registry registers a particular piece of freehold land for the first time it will give it one of three “classes” of title. These are absolute, qualified and possessory. Absolute is the best class to have as it is indefeasible, i.e. once it is granted the proprietor is recognised as the absolute owner and no one can challenge his ownership, even if it appears that a person may have a genuine claim to the land.
Qualified title is very rare and possessory title may be granted where the applicant has little or no documentary evidence to support their claim to the land but can demonstrate they have exercised the rights of an absolute owner for a sufficient period of time.
When Will Absolute Title Be Granted?
Before looking at how possessory title is claimed it’s worth understanding how to get absolute title. When land which is unregistered is disposed of, whether by sale, gift, assent, mortgage or any other means, it has to be registered by the incoming owner (or where it is mortgaged, by the existing owner) and the applicant must prove to the land registry that he is legally entitled to be registered as owner of the land.
To do this he needs to produce to the land registry not only the deed by which the land was transferred to him, but also an unbroken chain of deeds going back at least 15 years. This is known as the “epitome” of title. If the owner before him acquired the property more than 15 years previously then all that may be needed is the transfer to the applicant and the transfer/conveyance to the previous owner. If the previous owner has owned the property less than 15 years then the conveyance to him would also be required.
There are other requirements that must be met but this outline is sufficient for the purposes of this article.
When Will Possessory Title Be Granted?
Possessory title will be granted where the applicant has either no documentary evidence that he owns the land or has insufficient evidence to meet the standard required for absolute title (in this latter case qualified title will sometimes be granted). The lack of evidence of title may be as a result of lost or destroyed deeds or because the applicant wished to claim ownership of land that was never actually conveyed to him.
Applying for Possessory Title Based on Adverse Possession
Adverse possession is the term used to describe possession by someone other than the land owner (i.e. a squatter). In order to acquire possessory title based on adverse possession it will be necessary to demonstrate to the land registry that you have occupied the land with an intention to possess to the exclusion of others, openly and without payment or consent, for at least 12 years.
In the case of unregistered land the application can be made after 12 years’ occupation. In the case of registered land it can be made after 10 years and upon receipt of an application the land registry will serve notice on the registered proprietor at the address (or addresses if more than one) for service given in the official copies. The proprietor will then have two years in which to object to the application and evict the squatter, after which time the application can be completed.
What Evidence of Possession Will the Land Registry Need?
The applicant will need to produce a statutory declaration setting out such facts as when the occupation commenced, the purposes for which the land has been used, confirming that no consent for the use was obtained, that the use is and always has been open and apparent, that no objection has been raised and that the use has been continuous.
A statutory declaration must be sworn in the presence of a solicitor, licensed conveyancer or commissioner for oaths and the making of a false declaration is a criminal offence.
There are a few important points to consider here.
The possession must be continuous, this means that if there is any break in possession, even a day; then the clock is reset. This doesn’t mean you have to be constantly on the land. A break would occur where you had acted in a manner which demonstrated an intention to give up possession. For example if you were seeking to claim title to a house but at some point you had moved out with an intention to live elsewhere on a permanent basis, then moved back in, the 12 year period would commence from the date you moved back in.
Possession Must Be Open and Apparent
Your possession of the land must be open and you must not make any attempt to keep it secret. This is so that if the actual owner visits the land he can see that someone is in occupation. You must annex the land from surrounding land, i.e. by fencing it off. Unless it is clear that the land is intended to form part of an existing property (for example because it is an extension of a garden), then you should also put up signs indicating that the land is private property.
Possession Must Be Without Consent or Objection
If the consent of the owner has been granted for the use of the land then, although there may be other means by which an interest in the land can be claimed, a claim for adverse possession should fail. If an objection has been raised by the land owner then the 12 year period would only run from the date of the last contact with the land owner.
Applicant Must Demonstrate an Intention to Possess
It is not enough to simply use the land as a right of way, or to fish, gather fruit or graze animals on the land. These things may give rise to claims for lesser interests but in order to claim possession the applicant must have exercised the rights of an owner. Part of this is to fence the land off in order to exclude others, but some use must be made of it also. This might include planting something on the land, erecting a building or creating a hard standing for example.
Applying For Possessory Title as a Result of Lost Deeds
Sometimes the legal owner of land may lose the title deeds and so be unable to prove ownership to the land registry. If this is the case a search of any local archives which there may be (not every area will have one) does not reveal any copies, then a statutory declaration will need to be sworn by the person claiming to be the owner detailing when he/she acquired the property and the circumstances, and how the deeds were lost. The declaration should also confirm that should the deeds be located they will be submitted to the land registry. Any available supporting evidence should be produced, such as photocopies of deeds, sworn statements from neighbours who can confirm how long the owner has occupied the property, statements from any mortgagee who has a debt secured against the property and a statement of truth from the conveyancer who acted in the conveyance to the claimant.
Chains of Statutory Declarations
The 12 year period of continuous occupation does not have to be by the same person. If a person is buying a registered property for example where the seller has no title to part of the garden and he has owned the property for, say, 6 years and so cannot claim possessory title, he can provide the buyer with a statutory declaration covering his period of ownership. Once the buyer has lived there for 6 years he can then make his own declaration covering his period of ownership and based on the two declarations together can claim possessory title. Alternatively, if he sells the property within 6 years, he can make a declaration to pass on to the buyer together with the original declaration, and so on.
Problems Associated With Possessory Title
While a person only has possessory title to land, a person with a better claim (for example a person who has deeds to prove he is the true owner) can apply to be registered and if successful, the adverse possessor’s title will be closed and he will have no claim to compensation for any loss, even where he has done something to the land, such as built a property, which has increased its value.
For this reason buyers need to be wary and depending on what is on the land with possessory title, some lenders won’t lend. As a rule, if the land in question is part of a residential property but the house itself is built on land with absolute title and the possessory title does not cover the main access, then indemnity insurance will satisfy most mortgage lenders, whereas if the property or the access is on possessory land most lenders won’t lend.
Upgrading to Absolute Title
After land has been registered with possessory title for at least 12 years without any objection having been raised then an application can be made to the land registry to upgrade to absolute title. If successful then no future challenges can be made to your ownership (unless you abandon the land and someone else claims possessory title to it of course!).