adverse possessor

A true adverse possessor was not required to pay compensation.

For example, the adverse possessor's use must be "hostile and under claim of right," he said.

The adverse possessor can then apply to be the new registered proprietor of the land.

There may be more than one adverse possessor, taking as tenants in common, so long as the other elements are met.

This provides that a registered proprietor who objects has a further two years to evict the adverse possessor.

If no proceedings were launched for two years to eject the adverse possessor, only then would the registrar transfer title.

An adverse possessor can then apply for a vesting order to substitute his name on the register as the registered proprietor.

"The requirement for exclusivity means that the property is being used only by the adverse possessor," Mr. Hall said.

The adverse possessor's claim is therefore vulnerable under the 2002 Act and the registered proprietor is protected in all but the most unusual circumstances.

To get these rights, the adverse possessor usually must use the property in the way a normal owner would do for a period of time, typically 20 years.

These special cases usually arise because the adverse possessor has some other reason for claiming ownership in addition to their possession for (at least) 10 years.

In three special cases, the adverse possessor may be registered as proprietor without having to wait for two further years and even if the proprietor objects.

“If permission has been given, the adverse possessor cannot assert that his use of the property was hostile,” Mr. Oved said.

If an encroachment is discovered, one way to defeat an adverse possession claim is to give written permission to the adverse possessor to use the land.

He said that the term "hostile" does not necessarily mean that the adverse possessor was defiantly using property he or she knew was owned by someone else.

The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession.

Bad faith or intentional trespass view - used with the adverse possessor's subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility)

Circumstances of the adverse possession determine the type of title acquired by the adverse possessor, which may be fee simple title, mineral rights, or another interest in real property.

Fourth, under the Limitation Act 1980 sections 29 and 30, the adverse possessor must not have acknowledged the title of the owner in any express way, or the clock starts running again.

In other words, the "adverse possessor" must be using someone else's land without permission, without trying to hide the use and to the exclusion of the actual owner for at least 10 years.

In a few American jurisdictions the grantee from one whose land is adversely held is still precluded from maintaining an action in his own name to oust the adverse possessor.

But under the LRA 2002 Schedule 6, paragraphs 1 to 5, after 10 years the adverse possessor was entitled to apply to the registrar to become the new registered owner.

The limitation period remains the same (12 years) but instead of the original owner's title to the land being extinguished, the original owner holds the land on trust for the adverse possessor.

Before the Land Registration Act 2002, if a person had possessed land for 12 years, then at common law, the previous owner's right of action to eject the "adverse possessor" would expire.

In other words, the adverse possessor must physically use the land, must do so openly and without attempting to hide his usage, and must do so to the exclusion of the actual owner.