Finders Keepers? The Adverse Possession Q&A

Following one of our most popular property law webinars, we're back with a special Q&A episode tackling your adverse possession questions.

Can mowing land for years prove possession? What's the difference between encroachment and adverse possession? Can someone really acquire land that doesn't belong to them?

In this episode of Unpacking the Case, our Head of Legal Training, Richard Snape, answers real questions submitted by property professionals from across the sector. Covering everything from evidence and Land Registry applications to boundary disputes, highways, common land and landlord and tenant scenarios.

Whether you're a surveyor, developer, asset manager, property lawyer or landowner, this episode will help you navigate one of the most misunderstood areas of property law. 

Topics covered include:

• Proving adverse possession
• Boundary disputes
• Registered and unregistered land
• Land Registry applications
• Rights of way and public land
• Landlord and tenant issues
• Defeating adverse possession claims
• Practical evidence and strategy

 Relevant cases:

 Dobson v Unsted (2026)

Hood v Southern Land Securities Ltd & Anor [2025]

Relins v Gill [2025]

Clapham v Narga [2024]

Dwyer v The City of Westminster (2014)

Benn v Harding (1993)

George Wimpey & Co. Ltd. v. Sohn [1967]

JA Pye (Oxford) Ltd v Graham [2003]

Thorpe v Frank [2019]

Kirkman v Bradshaw Pub Company Ltd [2025]

Training & Free Webinars for Property Professionals:

Would you like to keep up to date with the latest in real estate law? Davitt Jones Bould offers legal training tailored to your organisation’s needs, delivered in person across the UK or remotely. We also run free monthly webinars through for surveyors, solicitors, and property professionals across sectors. To sign up or learn more, visit our events page here or email djb.events@djblaw.co.uk for information and booking. 

This podcast is for informational purposes only and is not intended to provide legal or professional advice. No liability is accepted by Davitt Jones Bould for any reliance placed on its content.

Transcript

00:00:00:10 - 00:00:21:14

Lizzie Collin

Hello and welcome to another episode of Unpacking the Case. Recently we hosted a webinar on adverse possession. And as often happens, the audience had far more questions than we could answer live on air. And it's not hard to see why. Adverse possession sits at the crossroads of boundary disputes, historical land use, and occasionally neighborly disagreements that have been brewing for decades.

00:00:21:14 - 00:00:49:02

Lizzie Collin

So what seems like a straightforward question can quickly become anything but. So in today's episode, we're tackling the questions we didn't have time to answer Will. We'll be exploring everything from proving possession and gathering evidence to disputes over boundaries, rights of way, public land, landlords and tenants issues, and much, much more. Joining me, as always, is our head of legal training, Richard Snape, who'll be helping us unpack some of the most common and some of the most surprising questions submitted by audience.

00:00:49:02 - 00:00:54:33

Lizzie Collin

So whether you're dealing with an active dispute or simply want to understand how these claims work,

00:00:54:40 - 00:01:02:06

Lizzie Collin

This episode should provide some useful tips. Let's get started.

00:01:02:11 - 00:01:30:22

Lizzie Collin

Hello, Richard. Hello, Lizzy. And we are back with another episode of Unpacking the Case, and we ran a webinar on adverse possession recently, which attracted a huge audience and probably unsurprisingly, generated far more questions than we could answer during the live session, which seems to be the case more often than not these days. But adverse possession remains one of the most misunderstood areas of property law, and whilst the legal principles are well-established, the practical scenarios can be anything but straightforward.

00:01:30:22 - 00:01:51:12

Lizzie Collin

So in this episode, we're working through some of the most interesting questions submitted by audience our audience. And as always, this is intended to be a general overview rather than legal advice, but hopefully it will be good guidance if you're dealing with adverse possession issues. So let's get started with the first set of questions, which are kind of the fundamentals to adverse possession.

00:01:51:12 - 00:02:14:45

Unknown

So one member of the audience asked what demonstrates possession. Well it's got to be a factual possession corpus possession and an intention to possess an animus. N.D. basically, you're treating the land in the same way as if it was your own land. You don't have to think it's your land and you intend to exclude all others, including the paper owner.

00:02:14:57 - 00:02:38:03

Richard Snape and Lizzie Collin 

But as you said, it depends so much on the facts. I mean, a lot of the cases are just, you know, sort of expert reports and this kind of thing. And, you know, they sort of they depend on this, you know, they get different decisions on the slightest of grounds really. But yeah. And could factual and intentional possession both be demonstrated through maintenance?

00:02:38:08 - 00:03:04:14

Richard Snape

Yeah. We've had that recent case that we did a podcast on and I mentioned in the course Dobson and where there was no fencing or anything like that, but a series of small activities like, you know, sort of mowing the lawns of this corner of the garden and, you know, planting flowers and bulbs there and likes and the kids playing, your kids playing on the land, all that sort of constituted on the facts, adverse possession.

00:03:04:17 - 00:03:33:52

Richard Snape

That's not to say every time it will do so, but it's certainly a factor. What is the difference between encroachment and adverse possession? Well, that's a topic in its own right, the law going back to medieval times on it. We had that, case on it we talked about, but it's not the only one. The McGhee and long term with versions Harrogate, which actually took place in London and Wimbledon.

00:03:33:57 - 00:04:03:15

Richard Snape

If it's encroachment, this was the one where there was an attic space. They had a top floor flat and the attic space was still in the entitled to the landlord. But they were they, they encroached from claims nowadays, you know, they basically sort of put steps up to the attic and the power supply, even though they knew it wasn't theirs for post 2003 adverse possession claims.

00:04:03:20 - 00:04:31:48

Richard Snape

If they are defended the land, you have to show one or more three types of adverse possession, most notably that you've made a reasonable mistake as the boundaries. And they obviously didn't make a reasonable mistake. They knew it wasn't their attic, but the the tribunal decided you could still claim encroachment, but it didn't have to be, you know, reasonable mistake was a place called HUD and Southern Land Securities this year as well.

00:04:31:50 - 00:05:04:35

Richard Snape

They'd said the same thing rather than attic space or last year. And also there's a case called Wellings and Gill which they successfully claimed encroachment of a roof terrace. But there are cases galore, lots of cases in the 19th century of it. It's more akin to in a stop or claim than an adverse possession claim. But that McGee case, I think the tribunal said that, you know, we've got the judiciary has got into a huge tangled web in between the two.

00:05:04:40 - 00:05:16:47

Richard Snape

But yeah, and there's adverse possession still possible if the claimant has granted licenses to others and received rent. Yeah, yeah.

00:05:16:51 - 00:05:43:34

Richard Snape

Strangely, that's that's something that sort of points strongly towards adverse possession. Again, if it's a post 2003 Land of Israel claim would be different. But, you know, there was a case called Morgan Doherty which is granting licenses with evidence that you were adverse possession in one. And there was a case I didn't mention called Mitchell and Watkinson, which was granted a lease to somebody, even though you didn't know the land owned the land.

00:05:43:34 - 00:05:48:43

Richard Snape

And that's a strong pointer to those possession.

00:05:48:48 - 00:06:14:52

Lizzie Collin and Richard Snape

And can you adversely possess land which is subject to rights enjoyed by others? Yeah, yeah. If you adversely possess against somebody, well, it doesn't destroy certainly unregistered land. It doesn't destroy other people's rights over the land. Like somebody might have an easement over the land that you've adversely possessed, or a charge for that matter. And can different owners, periods of occupation be aggregated to make up the qualifying period?

00:06:14:55 - 00:06:40:25

Richard Snape

Yeah, as long as there's not a big gap, but it's quite frequently the case that you'll have a sort of shifting population. There was that Vodafone potting sheds and bar and Gardens, which said that you have to have the same type of estate in land, you know, this older can't continue adverse possession vis a vis when the predecessor was a freeholder, let's say.

00:06:40:27 - 00:07:07:12

Richard Snape

Well, that's that's perhaps the proviso. But yeah, definitely. So moving on to registered land, what happens if the Land registry cannot locate the owner. Well, if it's if the title's registered and you claim a possession against the the paper owner, they they should be able to locate them. If they can't contact them. The lenders you'll have records of the paper owner of the title registered.

00:07:07:27 - 00:07:34:00

Richard Snape

And if they can't contact them if it's a first registration application. But if they can't contact them themselves, there's always a possibility you can actually fill in something called an advert two, which allows a third party to be notified that there's an adverse possession claim. Now if you're living abroad or something like that, but that's a possibility.

00:07:34:04 - 00:07:59:30

Lizzie Collin and Richard Snape

How relevant is the general boundaries rule where land is included in a neighbour’s title? Yeah, basically like the Clapham and Nagar case we mentioned, you can always apply to learn registry to have the boundaries. It exactly determined. But the land received the file plan in the description. You know don't definitely determine the boundaries. They're just evidence of where the boundaries are.

00:07:59:35 - 00:08:21:22

Richard Snape

So if it shows up as in the neighbours title, it doesn't stop. In general, boundaries are all still applying. You mentioned the case. Jake and Fripp is something like 4 or 5m out with the where the planners showed the boundary to be from where they would actually determined to be. And you can look at a various other evidence to determine the boundaries.

00:08:21:27 - 00:08:47:00

Lizzie Collin and Richard Snape

Do both parties have to agree to a determined boundary if you've applied to determine the boundaries until underestimation rules, then the person you're against the other your neighbor, if you like for a better expression, will be notified and they've got 28 days to object.

00:08:47:05 - 00:09:21:33

Richard Snape

And if they don't, and you've given enough evidence for the language you to determine the boundary, then that's what they will will do. So otherwise they have to agree. If they object, then there can't be they can't be a determination. Why a determined boundary applications often unsuccessful. Well, we've got to produce evidence of what the boundary is. And so the other side has to either agree or in default by not doing anything just because you've applied to determine the boundary.

00:09:21:33 - 00:09:44:53

Richard Snape

And the other, you know, the other side doesn't respond, doesn't mean to say you've produced enough evidence to for the you to actually successfully determine the boundary. So moving on to to leasehold kind of tenant obtain adverse possession of a landlord's adjoining land. Oh this is where we come back to, to encroachment and the likes. And it's like an estoppel claim.

00:09:44:53 - 00:10:21:38

Richard Snape

You can actually sort of potentially claim encroachment. The tricky the difficulty was there was a Hong Kong case, but an appeal case with quite high profile judges called Secretary of Justice for Justice and Child. So I can 2011 which basically cast doubt on encroachment and likes. But the recent cases, the recent UK cases have said otherwise. You can only claim encroachment for the duration of your lease.

00:10:21:38 - 00:10:39:09

Richard Snape

If you like, it will go back to the landlords afterwards. Well, you can claim adverse possession of being cases where you've claimed adverse possession, for instance, against just sort of an intermediate landlord. Well, you know, and the likes. That's possibility. Yeah, definitely.

00:10:39:14 - 00:11:02:25

Lizzie Collin and Richard Snape

Would a successful attic claim create a flying freehold or a leasehold title. It's again if it's an encouragement you're claiming then basically it's sort of just adds to the to the lease of if you like. And when the lease comes to an end and it reverts back to the landlord. Obviously, if it's a 999 year lease, not for a long, long time, but yeah, okay.

00:11:02:25 - 00:11:05:18

Lizzie Collin

Thank you.

00:11:05:22 - 00:11:56:14

Lizzie Collin and Richard Snape

So moving on to rights of way and public land can access rights be extinguished through nonuse? Well, that's sort of not so much adverse possession or extinguishing easements. It would be very, very difficult to show that in the cases galore over the years. I remember there was one called Dio in Westminster City Council or Dwyer not having Danny Dyer, which basically said that after 40 years of nonuse and passageway being blocked up and easement hadn't been extinguished, and there was Ben and Harding, which was they didn't accept an easement to be extinguished after 175 years.

00:11:56:16 - 00:12:32:42

Richard Snape

Non-use the best way of extinguishing the rights of way is by surrender, preferably by deed, and expressed the surrender. And that's probably the one. The wonders you'll accept only and can land that's used primarily for access be adversely possessed. There was a case called George Wimpey and Sown, which I don't think I mentioned in the course in 1967, which basically said if it's just access and that's it, that's not adverse possession, that's not intending to possess and factually possessing the land.

00:12:32:46 - 00:13:07:29

Lizzie Collin and Richard Snape

And what should public bodies do to protect land? I'm pretty much the same as private bodies, quite honestly. And that's just, again, if the title is registered on one of the reasons they changed the law in 2003, but not retrospectively for for registered land, who was to encourage first registrations, voluntary first registrations for things like public land in particular, because some public bodies and particularly central government are massive landowners and the best way of protecting is getting the title registered, because then unless there's person making the applications, got a boundary, actual boundary.

00:13:07:29 - 00:13:20:26

Richard Snape

And there's a reason my mistake because the boundaries they are likely to fail and also pleased the land. But it's no different between public and private bodies.

00:13:20:31 - 00:13:51:23

Lizzie Collin and Richard Snape

Can a unilateral license prevent a future claim? If you're given a license, just like if you're given a lease, it can't be adverse possession because you've got permission to be on to the land. If if you stop exercising license as a pie. And Graham, when they were given a license to be on the land and they were grazing rights and they were paying money for it, and they just stopped paying the money from that moment onwards, then the adverse possession claim can start.

00:13:51:27 - 00:14:10:12

Lizzie Collin and Richard Snape

Okay. Moving on to some quick fire questions to finish what happens to charges and mortgages? Basically, if it's registered land 2003 onwards claims it's schedule six, paragraph nine.

00:14:10:17 - 00:14:40:57

Richard Snape

Subparagraph two three, four. They basically they'll remain in existence. It is a bit twisted the way it deals with it. What they basically say they'll the charges will remain, if you make a claim under paragraph five, which is things like reasonable mistake as the boundaries and the likes, if it was unregistered land, then the charge would remain as long as within the 12 year time period.

00:14:41:04 - 00:15:12:06

Richard Snape

The mortgagee had taken steps to enforce, demanded the money and the likes. But if the person who's subject to the adverse possession claim hadn't paid the mortgage for 12 years and the mortgagee didn't do anything about it and the mortgage would die, does adverse possession exist in Thorpe and Frank? Yes, often. Frank was this one where they had a couple of semi-detached properties in York, open plan.

00:15:12:11 - 00:15:41:17

Richard Snape

And they, you know, with restrictive covenants against putting up fencing. And in that particular case, they said that adverse possession existed. And you don't need fencing for adverse possession. There's have been that Kirkman and Bradshaw Pub Company last year that said the same. And this year Dobson and Unsteady said the same thing. If there's good reasons and not fencing, you don't have to fence.

00:15:41:22 - 00:16:02:12

Lizzie Collin and Richard Snape

And what about in the pie case? Did Pie object within the 65 day period? Pain Graham was a pre landrace Act 2002 claim. The facts went back to the mid 1980s, and so you didn't have to object within the 65 day period in that particular case.

00:16:02:16 - 00:16:23:33

Lizzie Collin and Richard Snape

Can you claim adverse possession of unregistered land if you know it's not yours? If it's unregistered land? Yeah, you can claim. You don't have to think it's your land. You might know it's not your land. You might know that one day the paper owners intending to throw you out, but you can still claim and have possession different for post 2003 registered land claims.

00:16:23:37 - 00:16:47:27

Lizzie Collin

Thank you very much, Richard. Thank you to everybody who attended the webinar and submitted questions. As this is demonstrated, these areas, these things come up frequently in practice. So yeah, lots of questions to answer. If you enjoyed the episode, please do subscribe to Unpacking the Case. We regularly explore real estate legal issues affecting property professionals across the sector, and hopefully we'll also see you at one of our future webinars.

00:16:47:27 - 00:16:51:41

Lizzie Collin and Richard Snape

But thank you very much, Richard. Thanks a lot, Lizzie, and see you again.