Legal Briefing

In a weekly column, solicitor Juliet PhillipsJames casts her expert eye over a range of legal matters and urges anyone with any questions or problems to come forward for help.

QI am selling a property and have been informed that part of the garden is not in the title to the property. I have been informed that due to the length of time the part of the garden has been enclosed within the physical boundary of the property, an application for adverse possession can be made. However, this can be quite lengthy and I do not want to delay the sale. What is adverse possession and is there anything that can be done that could expedite the process?

AAdverse possession is when a person, who is not the owner of the land, is in occupation of that land without the permission of the person who actually owns the land. If the garden you are in occupation of is not registered with Land Registry, then an application for adverse possession can be made after 12 years of your occupation. If, however, the garden is registered with Land Registry, then an application for adverse possession can be made after 10 years of your occupation and notice of your application will be given to the owner giving them the opportunity to object.

Applications for adverse possession can be quite lengthy and certain factors must be met for the application to be considered, including an intention to possess, factual possession of the land, possession is without any permission and must exclude all others. If your garden is wholly enclosed as part of your property then this is likely to meet the criteria that it excludes all others. Your solicitor will draft a statement setting out the circumstances of your occupation and submit this to Land Registry. They may send out a surveyor to inspect the garden and check the statements made by you are correct.

As an alternative, an Adverse Possession Indemnity Policy could be offered to your purchaser as long as you have not attempted to contact the owner of the garden and have not previously attempted to apply for adverse possession at Land Registry.

You will also likely be asked to provide a statement to accompany the policy, which will confirm the period of ownership and use of the land.

Anyone in possession of land not owned by them, please contact the conveyancing department at Gomer Williams for further discussion on 01554 755101.

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