When studying Land Law, few students expect to come across what ordinary people might regard as legalised theft. The part of the law I am referring to is known as adverse possession, which can allow a squatter to obtain rights over land – commonly referred to as ‘squatter’s rights’. This concept may seem controversial, but it is based on the notion that unused land does not benefit society as a whole. In other words, on some occasions it is better for everyone that a limited resource like land should be used by someone rather than by no one.
The basic rules for someone to gain adverse possession are that they must prove the following:
- They have had exclusive possession of the land without the owner’s consent.
- They intended to possess the land, usually proven by their use of the land as if they were the legal owners.
- They have possessed and used the land continuously for a specified period of time.
The history of the rules of adverse possession
As long ago as 1925, there were statutory provisions that dealt with adverse possession. These rules were contained in legislation such as the Law of Property Act 1925 and later the Limitation Act 1980, which until the early 2000s allowed a squatter to gain adverse possession after 12 years of uninterrupted and continuous possession. The message that these rules sent out to land owners was that if you did not take care of your possessions, then you could lose them forever.
It should come as no surprise that some people felt the law as it stood was unfair, so the rules regarding adverse possession were changed by the Land Registration Act 2002. Under this act, it is much harder for a squatter to gain possession of registered land. If you have completed your Diploma, you will recall that all land in England and Wales is either registered with HM Land Registry or unregistered. That land which is unregistered is reducing every year, as it is now compulsory to register land whenever it is bought or sold. A squatter must now have possession of the land for at least 10 years, but the squatter must then apply to HM Land Registry for adverse possession. The Land Registry will then write to the registered owner, who has two years and 65 days to object. Obviously, being told in writing that someone intends to claim possession of their land puts owners in a better position to object, particularly if they did not realise that some or all of their land was being used by squatters. The 2002 act does not provide any extra protection for the owners of unregistered land, who can still lose their land without warning to a squatter who is in possession for 12 years or more.
Criminalising squatters
The most recent change to the law in this area is the new definition of squatting as a criminal offence. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, it is a criminal offence – punishable by up to a year in prison and a fine of £5,000 – to squat in a residential building. The offence became law on 1 September 2012, following a number of high-profile cases where homeowners returned from holidays to find their property occupied by squatters. One such case was that of Julia High, who found her house occupied by a family of eight after she returned home from a weekend away!
While the behaviour of an ‘opportunist’ squatter can in no way be condoned, this type of ‘aggressive’ squatting is rarely a problem. Existing rules under the Criminal Law Act 1977 protect homeowners from trespassers of this sort. As is often the case with hastily brought in, ‘headline grabbing’ rules, the new definition of squatting could have unforeseen, negative consequences. It could potentially lead to separate rules on squatting for residential and commercial properties. Plus, it will be unclear whether someone seeking adverse possession is now involved in a civil dispute as well as committing a criminal offence. Well-drafted law should clarify, not confuse, but unfortunately the 2012 act makes the law more complex – while doing nothing to deal with long-term squatting and adverse possession.