Applying for Possession of Land

Applying for Possession of Land

| Published on March 20, 2019

When making an application to HM Land Registry for first registration of freehold unregistered land, a person may be registered with either:

Absolute title if the registrar is of the opinion that the person’s title is such as a willing buyer could properly be advised by a competent professional advisor to accept, or

Qualified title if the registrar is of the opinion that the person’s title has been established only for a limited period or subject to certain reservations which cannot be disregarded, or

Possessory title if the registrar is of the opinion that:

  • The person is in actual possession of the land or in receipt of the rents and profits of the land and
  • There is no other class of title with which the person may be registered.

Registration with possessory title has the same effect as registration with absolute title except that the title is not guaranteed before the date of the first registration of the possessory title. Any future buyer therefore should check the title of the property before the date of registration of the possessory title and any adverse rights are excepted from the effect of registration and their priority is therefore protected on a later sale to a third party.

Although there is no requirement in the rules that a person in possession must have been in possession for any particular length of time, the registrar will normally refuse to register unless the applicant has been in possession for a period of 12 years or more. A title acquired by adverse possession is normally granted as a possessory title.

HM Land Registry will serve notice on any affected party who may then raise an objection to the application to adverse possession. The parties are given adequate time to resolve the dispute between them but, if no agreement is reached, then the matter is referred to the Land Registration division of the Property Chamber, First-tier Tribunal which will continue in an similar manner to Court proceedings.

The parties must each serve a Statement of Case and the Tribunal will give Directions for the disclosure of documents and witness statements to be filed and served. There can be expert evidence if necessary. On occasions, there may be a cross application for adverse possession by the other party and then the Tribunal may make an Order to consolidate both applications into one set of Tribunal proceedings.

If no settlement is reached during the course of the proceedings, then the matter will come on for final hearing and the Tribunal will normally sit in a local County Court and, more often than not, a site visit will be ordered immediately prior to the hearing in Court. Counsel may be instructed for the Trial and so it is prudent to take proper legal advice early on in the process.

For further advice please contact the dispute resolution team at our offices in Poole on 01202 725400 or Dorchester on 01305 251007.

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