Keith Mack
The expression possession is nine-tenths of the law is a popular legal phrase that suggests that ownership is easier to maintain if one has possession of something and difficult to enforce if one does not. In the context of property law, this means that in a dispute over real or personal property, the person in actual, custodial possession of the property is presumed to be the rightful owner—unless there is clear and compelling evidence to the contrary. While this principle does hold weight in certain legal contexts, it is not always true, especially when considering squatters' rights and adverse possession. In the UK, adverse possession occurs when someone occupies land that does not belong to them and then claims legal ownership. While legislation on adverse possession has been updated, disputes still arise, and understanding the legal framework governing possession disputes is crucial for resolving these conflicts.
| Characteristics | Values |
|---|---|
| Expression | Possession is nine-tenths of the law |
| Meaning | Ownership is easier to maintain if one has possession of something; difficult to enforce if one does not |
| Property law context | In a property dispute, in the absence of clear and compelling testimony or documentation to the contrary, the person in actual, custodial possession of the property is presumed to be the rightful owner |
| Adverse possession | If someone occupies a piece of land that does not belong to them for 10–12 years, they may be able to claim legal ownership of that land |
| Squatters' rights | Squatters can make a successful claim if they have uninterrupted exclusive physical control of the land for the requisite period and can show intention to possess |
| Legislation | Landlord and Tenant Act 1985, Housing Act 1988, Tribunals, Courts and Enforcement Act 2007, Limitation Act 1980 |
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What You'll Learn
Squatters' rights
Squatting is when someone deliberately enters a property without permission and lives there, or intends to live there. This is sometimes known as 'adverse possession'. Squatting in residential buildings (like a house or flat) is illegal and can lead to a prison sentence of up to 6 months, a £5,000 fine, or both. Squatting in a non-residential building is not a crime in itself, but property owners can take civil action to remove squatters and regain possession of their property.
In the UK, squatting has been progressively criminalised since the 1970s. However, there are some circumstances under which squatters can occupy and claim a right to a property. For example, if a squatter can show that they have occupied a property continuously for 10 years (12 years if it's not registered with HM Land Registry), they may be able to apply for ownership under adverse possession. In such cases, they would need to demonstrate that they have acted as if they own the property, such as by maintaining or improving it. The owner will be notified and has 65 days to object—if they do not, the squatters could take long-term legal ownership of the property.
It is important to note that squatters have a right to oppose forcible entry unless it is carried out by bailiffs or enforcement officers acting under a court order or by the police. Using force to remove squatters or threatening to do so is likely illegal and can be a criminal offence. If someone is squatting on your property, you should notify the police and seek legal advice from a lawyer experienced in this area. You can also apply for an interim possession order (IPO) if it has been no more than 28 days since you discovered the squatters.
To make a possession claim against squatters, you must start proceedings in the county court for the district in which the property is located. You will need to provide evidence that you are the rightful owner and that the squatters are occupying the property without your permission. If the court finds in your favour, the squatters will be ordered to vacate, and law enforcement may be called to remove them if necessary.
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Adverse possession
In the UK, adverse possession is governed by the Limitation Act 1980, which states that if someone is in possession of land for 12 years or more, they may acquire possessory rights. The person in possession, or the squatter, must pass a two-part test to successfully apply for adverse possession:
- Factual Possession: This requires the squatter to demonstrate continuous and uninterrupted exclusive physical control of the land for the requisite period. This means dealing with the land as an occupying owner and ensuring that no one else assists them in this process. Examples include paving a forecourt or maintaining and erecting boundary features such as fences or walls.
- Intention to Possess: The squatter must intend to possess the land without the owner's consent.
It is important to note that adverse possession does not apply if the possession is with the owner's permission, such as through a licence or tenancy agreement. Additionally, the 12-year period can be interrupted if the squatter provides a signed and written acknowledgement of the owner's title.
The UK Supreme Court has also clarified that the 10-year "reasonable belief" requirement for adverse possession applications is compatible with the European Convention on Human Rights (ECHR). This means that the reasonable belief of ownership can be held at any point during the 10-year period before making the application.
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Property disputes
In residential and commercial property disputes, being in possession can affect the enforcement process. Courts often require landlords or property owners to obtain a court order for possession before enforcement actions can take place. This reinforces the principle that possession gives the holder a legal edge unless the claimant provides strong legal evidence to the contrary.
For example, in a landlord-tenant dispute, a landlord in London sought possession of a rented property due to rent arrears. Despite a court ruling in the landlord's favour, the tenant refused to vacate. The landlord secured a Writ of Possession, and High Court Enforcement Officers successfully reclaimed the property.
Another example involves a commercial property owner who discovered squatters had taken over their vacant property. Under UK law, removing residential squatters requires a possession order, while commercial squatters can be evicted through common-law enforcement.
Adverse possession, or "squatters' rights," is a crucial aspect of property disputes. If someone occupies a piece of land belonging to someone else for a prolonged period, usually over 12 years, and has exclusive use and maintenance of it without consent or objection, they may apply for adverse possession. However, the process is more complex than it seems, and understanding the legal basis of possession is crucial.
To make a valid claim for adverse possession, several factors must be considered:
- Factual possession: This requires continuous, uninterrupted, and exclusive physical possession of the land.
- Intention to possess: The claimant must demonstrate an intention to possess the land to the exclusion of all others, including the landowner.
- Uninterrupted possession: The possession must be uninterrupted for a specified period, usually 12 years, though it has recently been reduced to 10 years.
- Registered vs. unregistered land: The differences between registered and unregistered land can impact the adverse possession process and the rights of the landowner and squatter.
- Accurate boundaries: Clearly defined boundaries are essential when buying land or property to avoid disputes with neighbours or issues with development.
In conclusion, while possession may hold significant weight in property disputes, it is not the sole determining factor. Property law is intricate, and seeking professional legal advice is often necessary to navigate these complex disputes successfully.
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Landlord-tenant disputes
Firstly, landlords should communicate directly and openly with their tenants to discuss problems such as rent arrears or anti-social behaviour and try to find a mutually acceptable solution. Alternative dispute resolution methods such as mediation, where an independent third party assists in reaching an agreement, can be quicker and cheaper than court action. Mediation can also help in agreeing on a rent repayment plan.
If a tenant has received a notice requiring possession or a notice seeking possession, they can seek free legal advice from the Housing Loss Prevention Service (HLPAS) to help prevent the loss of their home. A government-funded housing law expert can advise on issues such as debt, housing benefits, and rent repayment plans. Tenants can also seek legal advice by texting 'legalaid' to a specified number. It is important to act promptly and not wait until the eviction date to seek advice, as early action increases the chances of resolving the dispute and remaining in the property.
In England, landlords can currently evict tenants without providing a reason by issuing a Section 21 eviction notice, requiring at least two months' notice. After this period, the court will order the tenant's eviction if they have not left. However, the Renters' Rights Bill aims to abolish Section 21 evictions, giving tenants more security and challenging unfair rent increases. Landlords will then need to use Section 8 grounds for possession, which are specific circumstances defined by law, such as rent arrears.
To summarise, landlord-tenant disputes can often be resolved through open communication and alternative dispute resolution methods like mediation. Tenants facing eviction can seek free legal advice, but they should act promptly to increase their chances of staying in their homes. Additionally, upcoming legislation in England will abolish Section 21 evictions, providing tenants with greater security and protection from unfair practices.
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Law and ownership
"Possession is nine-tenths of the law" is a common expression that suggests that maintaining ownership is easier when one has possession of something, while it is difficult to enforce ownership without possession. The phrase is not legally accurate, but it does emphasise the importance of possession in legal contexts.
In the UK, the legal framework governing possession disputes includes the Landlord and Tenant Act 1985, the Housing Act 1988, the Tribunals, Courts and Enforcement Act 2007, and Common Law Rights. In practice, courts often require landlords or property owners to obtain a court order for possession before enforcement actions can take place. This is particularly relevant in cases of increasing possession disputes, trespassing, and tenant evictions.
The concept of possession is also significant in property law. In property disputes, the person in actual, custodial possession of the property is presumed to be the rightful owner, unless there is clear and compelling evidence to the contrary. This principle is reflected in the saying, "as you possess, so may you continue to possess", which refers to the idea that colonial administrative boundaries become international boundaries when a colony achieves independence.
In the context of land ownership, the Limitation Act 1980 states that if someone has possessed land for 12 years or more, they may acquire possessory rights, potentially extinguishing the paper trail proprietorship rights. This is known as adverse possession, and it requires both factual possession, demonstrating continuous and uninterrupted exclusive physical control of the land, and intention to possess.
While possession can play a role in determining ownership, it is not the sole factor. In English law, the nature of ownership and its relationship with possession are complex. The concept of ownership involves the acquisition, content, and priority of rights and obligations among people with interests in land or property. Property rights are generally considered "stronger" than personal rights, and English courts have historically favoured ordering specific performance for interference with property rights.
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Frequently asked questions
It is an expression that means ownership is easier to maintain if one has possession of something, or difficult to enforce if one does not.
No, it is not literally true. However, it reflects the legal truth that every claimant must succeed by the strength of their title, and not by the weakness of their antagonist's.
The expression is derived from the Scottish expression "possession is eleven points in the law, and they say there are but twelve."
The legal framework includes the Landlord and Tenant Act 1985, the Housing Act 1988, the Tribunals, Courts and Enforcement Act 2007, and Common Law Rights.
Adverse possession, sometimes known as "squatter's rights", is when someone occupies land that does not belong to them and subsequently claims legal ownership of that land.
