Be on your guard
Posted by: Westcor International

When buying land it is vital to ensure that the seller has exclusive possession of the land and also owns the paper title. It is only possible to convey and receive title to a parcel of land if this is the case. The recent decision in Heaney v Kirkby brings this into sharp focus and demonstrates the problems that can arise when someone claims ownership over a piece of land by adverse possession.


Adverse possession is a principle under which a person in possession of land owned by another individual may acquire valid title to it as long as certain requirements are met. Under English law, the person claiming ownership by adverse possession is required to demonstrate that the land has been under their exclusive possession for a set period of time, and that this possession was intentional, uninterrupted and without the owner’s consent.


The length of time for which the land has to be occupied depends on whether the land is registered or unregistered. Under the Limitation Act 1980, 12 years of adverse possession ownership is required when dealing with unregistered land. Under the Land Registration Act 2002, claims relating to registered land require a period of 10 years of adverse possession. However, where the period of possession relied upon ended after 13 October 2003 and for a period of possession that ended before 13 October 2003, the required period is 12 years.


After this has been established, an application can be made to the Land Registry claiming ownership. A set procedure is then followed, whereby the Land Registry contacts the registered titleholder informing them of the application. The title will be registered as a Possessory Title and after a period of 12 years an application can be made to upgrade this to full Title Absolute.


To be ’in possession’ requires a sufficient degree of exclusive physical control over the land, which will depend on the circumstance of each individual case.


In Heaney, the dispute centred on a piece of land known as the ‘Verge’ in West Yorkshire, situated between the Coach House (owned by Mrs. Kirkby) and the Woodshed (owned by Mr. Heaney). At the time Mrs. Kirkby acquired her property, there appeared to be no paper title to the land in question.


Between June and December 1999, Mrs. Kirkby carried out considerable works to the Verge, including installing two car parking spaces. She brought in 12 tons of topsoil, seeded the verge with grass and put in place a coping stone.


In February 2012, Mr. Heaney acquired title to the Verge. In April 2012 however, Mrs. Kirkby made an application to the Land Registry for first registration of title to the Verge through adverse possession. Mr. Heaney disputed it, claiming that she did not have factual possession for the requisite 12 years, nor did she show intention to possess the land. Furthermore, he argued that as he had acquired paper title to the Verge in February Mrs. Kirkby stopped being in possession of the Verge from that day.


Following an epic legal battle, which ended in the Court of Appeal this year, the law came down firmly on the side of Mrs. Kirkby, holding that she had exercised a sufficient degree of exclusive control over the land from July 1999 to February 2012. Mr. Heaney was left to foot a legal bill of around £250,000.


It is clear following this decision that if another person is using an area of land for which you hold the paper title it is best to monitor their use and make it clear that they are doing so with your consent.


Title insurance can play a vital role in this context if land is being acquired and the seller in is occupation by adverse possession. Title insurance can cover the risks associated with a third party claiming a better title. In addition, where a possessory title has been granted by the Land Registry the title is not guaranteed by the Land Registry as absolute for a further 12 years. Title insurance can act as a surrogate for the Land Registry guarantee during this 12-year interim period.


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