10th October 2023

Setting boundaries – advice for Farmers on avoiding Adverse Possession claim

Thrings Agriculture lawyers Adverse Possession claim

Farmers are busy people, juggling an ever-diversifying range of agricultural practices whilst trying to run a business and stay on top of changing regulations. The last thing you need is to lose ownership of your land, but with adverse possession claims on the rise, it can happen. Here is what you need to know:

What is Adverse Possession?

Adverse Possession is where a person can claim ownership of land that they do not legally own by physically possessing it for the necessary period of time.

For a claim to be successful, it must meet three requirements:

  • The claimant must show factual possession of the land being claimed;
  • There must be a demonstratable intention to possess the land;
  • The possession of the land has to be without the owner’s permission.

There are different time periods depending on whether the land is registered with the Land Registry or unregistered. If the land is registered then the time period is ten years, if it is unregistered, the time period is 12 years.

A common way in which a person can claim Adverse Possession of farmland is if they have a house or land that adjoins the farm and over time the fences to the house or land are moved to incorporate the farmland into their land or garden.

What is the law?

The law on Adverse Possession was changed in 2003 by the Land Registration Act 2002, to make it more difficult to claim adverse possession of registered land.

Although the time period for possessing the land has been reduced from 12 years to 10 years, if the owner of the land opposes the application, the application will be rejected unless the person making the application can satisfy some additional conditions.

The most common condition relied on is where the land being claimed is adjacent to the applicant’s own land and they have been in possession of it under their own mistaken but reasonable belief that they are the owner of it. This condition is intended to cover genuine boundary disputes including situations where say a fence has been erected between two residential properties but for whatever reason it hasn’t been erected exactly on the correct boundary line, but it has remained in that same position for over 10 years.

Defining ‘adjacent’ land

The limits of the ‘adjacent land’ condition was considered by the Upper Tribunal (Lands Chamber) in the case of Dowse and Another v City of Bradford Metropolitan District Council [2020] UKUT 202 (LC) where the Tribunal highlighted how claiming adverse possession for registered land has now been severely limited by the new regime brought in by the Land Registration Act 2002.

In the case, Mr and Mrs Dowse were claiming approximately two acres of Council land bordering the garden of their house, which part of a primary school with the area in dispute bisected from the main site by a railway line. Their claim centred around the argument that for the claimed land be ‘adjacent’ to theirs meant that they simply needed to own land that shared a boundary with it.

The Tribunal’s Judge, however, decided that the area they were claiming could not all be said to be adjacent to their land as only a small part was. For the ‘adjacent’ condition to be made out “the whole (or substantially the whole) of the disputed land would have to be capable of being described as ‘adjacent to’ the applicant’s land”.

What can be done to prevent Adverse Possession?

One aspect of this process that benefits landowners is the fact that there is a decade-long window to act if they feel their land is under threat and by getting into a pattern, it can save a lot of headache in the long run.

Whilst it can be difficult to do regularly, it is important to check on your land and its boundaries to make sure they have not been altered and that there is no unauthorised person in occupation of your land. This is particularly important if you have rented out your land to someone else to farm who may not be so familiar with it.

Landowners that are concerned their land is subject to unauthorised occupation or changes to boundaries should seek robust legal advice on how to secure their estate.

The Thrings Agriculture team has been chosen by the NFU to act for its members in more counties than any other firm. Find out more about how we can support farmers, food producers and rural communities on our Information for Farmers page.

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