The muddy waters of adverse possession: Can a boat owner claim he owns a bit of a river bed after mooring there for 13 years?
Adverse possession, more commonly known as squatters' rights, has always been a rather complicated area of the law - and with two different rules for sorting out just who owns what, things aren't getting any clearer.
Adverse possession occurs when someone gains ownership of a piece of land because they have occupied it for a period of time. The most common examples often occur between neighbours as a result of deliberate trespassing or confusion over exactly where a boundary begins and ends.
A recent and very unusual case poses some interesting questions and goes some way to highlighting just how complex this area of the law can be.
That river bed's mine
In what some might call an audacious attempt, Mr Mendoza, who lived in a houseboat on the north bank of the River Thames, decided to claim he had adverse possession of part of the river bed because, every day, twice a day, for 13 years at low tide, his boat rested on it.
He made his move after the Port of London Authority (PLA) applied to the Land Registry for first registration of its title to the bed and foreshore of a stretch of the Thames. Mr Mendoza objected, claiming that although the authority had paper title, he had acquired title to part of the river bed by adverse possession and to begin with, things went his way.
The First Tier Tribunal (FTT) found he had indeed acquired title to the rectangle of river bed beneath his boat, the Wight Queen, through adverse possession. The PLA then appealed and won on the basis that Mr Mendoza's actions had not shown sufficient evidence of a requisite intention to possess that land. Presumably, if Mr Mendoza had shown more clearly that he intended to possess the land, he would have been able to claim ownership.
So, what is the law on adverse possession?
If someone is physically occupying land, known as having possessory title, they have the right to stop anyone coming on to the land unless that person has a better legal title, an obviously precarious position as the legal owner of the land can choose to evict them.
There are two principles of law, one old, one new, for establishing adverse possession, also depending on whether the land was unregistered or registered:
- The old law: If someone had uninterrupted possession for 12 years of a plot of unregistered land, i.e. adverse possession, prior to 13 October 2003, then they are entitled to be registered as proprietor and even the legal owner of the land cannot claim back possession, hence the expression 'squatters rights';
- The new law: But if the land is registered, and unless the above can be proved, then the provisions of the Land Registration Act 2002, designed to make it more difficult for squatters to acquire title, apply. This reduces the required period of adverse possession to ten years. The occupier of the land must first establish he has been in possession of the land, that he has exercised sufficient control of the land and that he had an intention to possess the land in question. The Land Registry will then notify the registered landowner of the application who has 65 business days to lodge an objection. If no objection is received, then the new occupier (the squatter) is registered as the landowner. On the other hand, if the land has been in adverse possession for less than ten years, the landowner can evict the occupier.
Further complications - 'reasonable belief'
For the new law to apply, the applicant must have reasonably believed the land belonged to them for the specified ten years, ending on the date the application is made.
But does this mean the 'reasonable belief' has to be held for the ten years immediately before the application was made or does it apply to any ten year period?
This is a point the courts have failed to clear up despite two cases going all the way to appeal. Key points seem to be that the ten year period of reasonable belief does not have to continue right up to the date of the application but that it must not end more than a short time beforehand. The person claiming adverse possession will be able to claim if they act promptly. But again, this is confusing as there is no clear definition of 'promptly'.