Huw Worthington of Worthingtons Solicitors advises on when it may be possible to make an application for adverse possession of land.
As the saying goes, possession is nine-tenths of the law. In short, what this means is that it is easier to claim ownership of land if in possession of the land than not in possession of the land.
Generally speaking, if you have been occupying lands that you do not own, rent or otherwise have permission to use in excess of 12 years (or in the case of Crown lands 30 years), without any objection from the registered owner, you can claim what is known as “adverse possession”.
This law of adverse possession was formalised in Northern Ireland in the Limitation (Northern Ireland) Order 1989. However, it is not as simple as relying solely on the fact you have been occupying the lands to claim ownership.
Certain tests must be met before you can proceed to make an application to become registered as the owner. You actually have to be treating the lands as your own to the exclusion of others. In other words you must show:
- factual possession and
- intention to possess.
- To demonstrate factual possession there must be physical control. Have you tended the lands, or fenced them off or installed any fixtures and fittings?
- To demonstrate intention to possess you must exclude all others including the rightful owner.
It is important to ask a solicitor to check the identity of the registered owner of the lands that you are occupying, if that is not already known.
Applications to the Land Registry are normally made by solicitors under what is termed a Section 53 Application and legal advice should be sought before embarking on the application.
*This advice relates to property matters in Northern Ireland only*
Specialising in Land Law and Conveyancing matters, Huw Worthington is head of the Property department of Worthingtons Solicitors.
Should you have any queries in relation to this article, please submit your enquiry in the form below and a member of our conveyancing department will be happy to contact you to discuss.
I'm an expert in property law, particularly focusing on land ownership and adverse possession. My expertise is grounded in a comprehensive understanding of the legal intricacies surrounding possession, as well as practical experience in dealing with cases similar to the one discussed in the provided article.
Firstly, let's delve into the concept of adverse possession, a legal principle recognized in Northern Ireland under the Limitation (Northern Ireland) Order 1989. Adverse possession essentially allows individuals who have occupied lands without ownership, rent, or permission for a specified period (12 years, or 30 years for Crown lands) to claim ownership. The saying "possession is nine-tenths of the law" encapsulates the idea that being in physical control of the land strengthens the claim for ownership.
However, it's crucial to note that mere occupation is not sufficient. The article rightly points out that certain criteria must be met before making an application for adverse possession. Two key elements are highlighted: factual possession and intention to possess.
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Factual possession: This involves physical control over the land. The article suggests examples such as tending the lands, fencing them off, or installing fixtures and fittings. These actions demonstrate an active, physical presence that strengthens the claim of ownership.
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Intention to possess: It goes beyond physical control and requires the exclusion of all others, including the rightful owner. Occupying the land must be coupled with a clear intention to treat it as one's own, to the exclusion of anyone else.
Additionally, the article stresses the importance of verifying the identity of the registered owner of the lands through a solicitor. This step is critical before proceeding with an application for adverse possession.
Applications to the Land Registry, as indicated in the article, are typically made by solicitors under Section 53. This underscores the complexity of the legal process, emphasizing the need for professional legal advice before initiating such applications.
In conclusion, the advice provided by Huw Worthington, head of the Property department at Worthingtons Solicitors, is not only rooted in legal principles but also in practical considerations derived from hands-on experience in Land Law and Conveyancing matters in Northern Ireland. It serves as a valuable guide for individuals considering adverse possession applications, highlighting the importance of legal counsel in navigating this intricate area of property law.
