How Does Adverse Possession Work for Garden Boundary Disputes?

Adverse possession allows a person who has occupied land belonging to someone else for a sufficient period to claim legal ownership of it. In garden boundary disputes, it is often raised where a fence has stood in the wrong position for many years. Understanding how it works helps you assess your position.

What Is Adverse Possession?

Adverse possession is the legal mechanism by which someone who has been in factual possession of land without the owner's permission, and without acknowledging the owner's title, can eventually acquire ownership. The requirements and timescales differ depending on whether the land is registered or unregistered.

Unregistered Land

For unregistered land, the traditional rule applies: 12 years of adverse possession extinguishes the paper owner's title and gives the possessor the right to be registered as the new owner. This remains the position for most unregistered land in England and Wales.

Registered Land

For registered land, the Land Registration Act 2002 introduced a significantly different regime. After 10 years of adverse possession, the possessor can apply to be registered as the new owner. The Land Registry notifies the registered proprietor, who has two years to object. If they object and bring proceedings to recover the land, the possessor must show one of three narrow grounds to succeed: estoppel, some other right to be registered, or that they reasonably believed the land was theirs for the whole period of possession.

If the registered proprietor does nothing for two years after the initial application, the possessor can apply again and will be registered as owner.

What Does Factual Possession Require?

Factual possession means treating the land as your own to the exclusion of everyone else, including the paper owner. Maintaining a garden, mowing the grass, planting, and erecting a fence around the disputed land all count. The possession must be open, not concealed, and without the permission of the owner.

How Does This Apply to a Fence That Has Moved?

Where a garden fence has stood in a position that encroaches on a neighbour's land for many years, the owner of the encroaching garden may have a valid adverse possession claim to the strip of land between the fence and the true boundary. The starting point is identifying when the fence was put in that position and whether there has been uninterrupted factual possession since then.

Summary

Adverse possession of garden land is governed by different rules depending on whether the land is registered or unregistered. For registered land, the Land Registration Act 2002 applies and the paper owner has the right to object within two years of a claim being made. Expert legal advice is important before making or defending an adverse possession claim.

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