Although land and buildings can be owned by one individual, the actual possessor of the land will often be equipped with enforceable rights, whether legally granted by the landowner to them, or through operation of the doctrine of prescription giving rise to new rights or interest in land.
Likewise, the doctrine of adverse possession will enable the occupier of land who holds not prior legal interest to contest ownership of the land after a certain period of time. The rules regarding adverse possession differ depending on whether or not the provisions of the Land Registration Act 2002 apply.
Private and public nuisance
At common law, the legal occupier of land can bring claims against infringements of their right to quiet enjoyment of the premises at common law. If a landlord, or in some instances third parties, performed activities that interfered with the occupiers right, the occupier may be entitled to a court action grounded in private nuisance that enjoins such activities. For a court to intervene, the interference must be unreasonable in nature, which is assessed on the basis of common practice in the locality, the duration of the activity, susceptibility of the tenant and whether malicious intent was involved.
For public nuisance, action can be brought under tort where an activity carried out by a landlord or tenant constitutes an unreasonable interference with the interest of the public. Public nuisance, where found to exist, is also a criminal offense.
Where the right to occupy premises, held by landlord or tenant, is infringed, that party may have recourse to court action under the tort of trespass. Trespass can occur as a result of physical construction on the premises, unauthorised entry by persons or animals, and allowing natural features to grow onto the premises from outside.
An action under trespass can be sought in court to halt current intrusion and prevent the same in future.
Where land is occupied by an individual who does not have an initial legal interest in it for several years, at common law in England & Wales being 12 years, that occupier can acquire the right to be registered as the owner of that land under the doctrine of adverse possession. An occupier under such conditions is commonly referred to as a “squatter”. The land must be occupied openly and without force, or any consent from the actual owner.
After the coming into force of the 2002 Land Registration scheme, this doctrine was altered to the effect that after 10 years the occupier of registered land could apply to the Land Register to be acknowledged as the rightful owner, however, the actual owner would be notified and provided the opportunity to (1) oppose via counter notice or (2) object to the registration.
An objection to the registration is available to the actual owner if they contest that the occupier has not been present for the requisite 10-year period.
An opposition to the registration via counter notice will result in the occupier’s application being objected, unless the following grounds apply:
- It would be unconscionable for the owner to dispossess the occupier. This consideration is grounded in equity.
- The adverse possession has arisen due the occupier owning adjacent land and through mistaken but reasonable belief in the borders between the land they came into occupation. For this exception to apply, the actual owner must have registered the land subject to adverse possession over a year before the occupant sought to register it as their own.
If the application for registration is rejected as a result of opposition by the owner, the occupant is subject to a two-year estoppel from making another applicant, and the owner may subject them to eviction proceedings.
Prescription and acquisition of new rights
Where a right to use or access land, known as an easement, has not been legally granted by an owner, it can still be obtained by prescription. For prescription to operate, the use or access must have been open, without force and without consent from the landowner. An easement will typically feature land that benefits another (the burdened land) and the land receiving the benefit (the benefited land).
Registration of easements as they apply to registered land will follow the same process as registering adverse interest of land. If no objection is made to the notice of registration of an easement by the owner of the burdened land, it will be entered against that land to the effect it can be enforced against subsequent owners. Two common forms of easement are (1) rights of way and (2) rights to light.
Right of way
A very common type of easement by prescription is a right of way. In order to establish a right of way, the party accessing the property must show they have done so for a 20-year period without interruption. A public right of way, as opposed to a mere private right of way, can emerge within the same time frame.
Rights of light
If access to natural light has been in existence for a long period of time, a right may arise through operation of the doctrine of prescription. Under English & Welsh statutory and common law, after a 20-year period of use the doctrine can operate to provide an enforceable right to the occupier of the land.
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It is important to grasp what rights not only the legal occupant of a piece of land is entitled to enforce, but also the rights that can arise from an occupant’s use or possession of land.
At Lewis Nedas, our team of Property Litigation Solicitors have broad experience in both commercial and residential property litigation. We have successfully advised clients with highly complex and multi-faceted cases. To speak with one of our Property Lawyers, please contact us on 020 7387 2032 or complete our online enquiry form.