Legal advice: Land rights
IMAGINE THE scenario: a tenant occupies a village pub and the lease includes a substantial field to the rear of it.
In 1987 the tenant is approached by someone who needs a paddock to keep their horse in. As the field is not being used and needs to be maintained the tenant agrees to let the village resident keep their horse in a part of the field in return for keeping the whole field in order. They subsequently put up fencing and a gate and erect a small wooden stable.
Then imagine the tenant has decided that they would like to develop the field as an additional garden and overspill car park. When asked to remove the horse, the villager claims adverse possession of the field. What is the tenant'sposition?
The position between the landlord and the tenant
The first problem created is that the tenant probably should not have allowed the resident to keep their horse in the field without the landlord's consent. Most pub leases will contain a provision which states that the tenant must not part with possession, or allow another person into occupation, of the whole or any part of the leased property without the prior permission of the landlord.
What happens next will depend on the relationship between the landlord and tenant, and the tenant's commercial performance. The landlord could threaten to forfeit the lease - especially if it sees potential development value in the field.
The resident's claim to adverse possession of the field
The second problem created is that the village resident can show they have kept the horse in the paddock, fenced the paddock off, kept the
paddock in good order and generally occupied and treated it as their own for more than 12 years. The 12-year rule is crucial.
If they can claim to have adversely occupied the paddock for more than 12 years prior to October 13, 2003, (the date when the Land Registration Act 2002 came into force), the villager's claim will be covered by the old law concerning adverse possession.
This is where it is even possible for squatters to acquire title to land if they can show they have occupied the land without interference for more than 12 years.
However, the legal position is now uncertain because the law about adverse possession could be argued to be incompatible with European law. This is because a law in favour of squatters interferes with a lawful landowner's rights under the European Convention to peacefully enjoy their land.
Where squatters have not completed 12 years continuous adverse possession prior to October 13, 2003, a new legal regime applies. This puts the onus on the squatter to prove they are entitled to be registered as owner of the land.
Under the new law a squatter must apply to the Land Registry to become owner of the land. A number of technical grounds must be satisfied so that the squatter can convince the Land Registry he has a worthwhile case. Once the Registry is convinced the squatter has a worthwhile case, the owner is notified of the application and given a chance to object.
A few tips on avoiding adverse possession claims
Firstly, always make sure that if you need it, you have the landlord's permission to let someone else occupy or use any part of your property.
Secondly, never allow someone to stay on your property or use your property on a relatively long-term basis (that is for more than six months) without putting a written agreement in place.
Thirdly, if someone is on your land or using it without your permission, talk to your landlord if you have one, and don't delay in seeking legal advice.
The longer the problem is allowed to continue without taking legal steps to recover possession of the land, the more the squatter's adverse possession claim is strengthened.
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Kimbells is well versed in the legal issues facing the drinks, hospitality and leisure industry, having specialised for many years in advising companies in this sector. Legal updates and commentary on topical industry issues can be found at www.kimbells.com (link right). Key contacts are Leo Skinner, Neil Lyon and Peter Holden.
