Landowners beware of land thieves (otherwise known as squatters, trespassers and land grabbers).

It is extremely important that landowners understand in what circumstances unscrupulous people can steal control and ownership of their land, and/or gain legal rights over it, without having paid for that ownership or those rights. Tina Dobbs, Senior Associate, in our Commercial Property Department explains more:

The concept of stealing land is not necessarily the right label where people are genuinely, rather than dishonestly, appropriating a few feet of land beyond a boundary line they believe they own.  However, where large areas of land are taken under the auspices of ‘adverse possession’ and the perpetrator knows the land is not theirs it is debateable that it should constitute theft. 

This blog deals with the potential theft of large areas of land and the prescriptive acquisition of legal easements over land.

Regarding the theft of large areas of land, landowners should note the circumstances that arose in the case of J.A. Pye (Oxford) Ltd v Graham [2003], where Graham was lawfully able to steal the land from Pye.  The facts:

• Pye owned a manor house with land. 
• Pye sold the manor house and kept the land for future development.
• Pye allowed Graham to graze the land under the terms of a formal annual agreement in exchange for payment.
• Graham refused to renew the agreement when it expired but continued to occupy the land which was enclosed where the gate to it was also padlocked and where no key was given to Pye.
• Pye unfortunately did not pursue Graham to sign the new agreement nor vacate and after 16 years Graham, learning that the land was worth £10 Million, issued proceedings to gain possession of the land and won based on the principles of adverse possession.

Therefore, landowners should be aware of the two main legal principles referred to in this blog, namely:

1. Adverse possession – if an individual has been in possession of another person’s land without the owner’s permission for 10 years (if the land is registered with HM Land Registry) or 12 years (if the land is not so registered), they may be able to claim adverse possession. The possession must be continuous, without permission nor significant gaps.  It can take the form of factual possession (physical control) or intention to possess (by certain actions and exclusion of others).
2. Prescriptive easement – this is a legal right to use land acquired through long-term entry over, under or over land (for at least 20 years) without permission, force or secrecy.  

To avoid claims of adverse possession and prescriptive rights, landowners should:

• Be aware of the boundaries of their land

This can be done by referring to the title deeds (if the land is registered at HM Land Registry) or by reviewing the conveyancing documents from the land purchase, which will also reveal any boundary information.

As with Land Registry title plans, conveyancing plans might not be absolutely accurate as to the boundary lines (usually by red edging). However, by having a good knowledge of the position of your boundaries, you would certainly notice if any encroachment or trespass was occurring in any visible and significant way.

• Be vigilant and regularly walk your land and its boundaries

This will help you identify any land or rights thieves as quickly as possible and deal with removing any structures or withdrawing any access that would leave you open to an adverse possession or easement claim.  Installing preventative security measures will also help.

• Put signs up where possible stating that your land is private and that trespassers will be prosecuted

You should take photographic date stamped records and then conduct regular checks of the signs replacing them where necessary. This can act as a good deterrent, but only if you police your land regularly and check that nobody is flouting your signs. Having signs in place will not save you in the event of a claim made by a land thief if you have not also taken action to prosecute in accordance with those signs.

How land thieves possess land

The clandestine ways in which land thieves adversely possess land, (aside from the obvious installation of a fence or other immediately noticeable structure), come in several guises, and to name a few:

• Planting a hedge enclosing an area of your land

This can be done in a very sly way, usually by planting saplings that go unnoticed by you in the early stages of growth.  Depending on the plant species, the hedge can grow fairly quicky – for example, leylandii is very fast growing, and even yew hedges will grow at a rate of approximately three feet every two years.

• Replacing paving, cutting, planting and sweeping leaves 

Maintenance of land can be a significant factor in proving adverse possession. General upkeep of the land such as planting bulbs, mowing the grass and reconfiguring the land can all be key determinants in proving factual possession.

Land maintenance was a key part of the claimant’s argument in Daniell v Porthleven Harbour and Dock Company [2021].  Notwithstanding the claimant’s possession was interrupted by two years’ lack of use, the land thief’s successor gained favour from the court to have the land registered in her name.

• Filling in a ditch which serves and is your land

This can occur where a ditch is, say, behind the fence you have installed to keep your animals from falling into it.  This can aid a land thief’s claim of adverse possession because it is easily done and leads to physical control and management of your land.

• Approaching you and asking if they can (for instance) have their animals graze your land

At the time you think that might be helpful to you to keep the grass and weeds down, so you verbally allow that to happen and do not seek any rental payment (or if you do, you accept cash).  The years go by and before you know it, the person has been on your land with no written evidence of permission nor rent being paid. The next thing you know, they have claimed adverse possession of the land they have fenced off for their animals!  Not dissimilar to what happened in Pye v Graham above.

• Asking you if you would like your land mowed and not accepting payment

This seems like a very kind act and so you verbally agree and give them permission to mow.  They might also install a few flower beds, with one or two forming a barrier-like division. Years go by and you find yourself facing legal issues over ownership of the land when you come to sell.

• Walking their dog across your land as a shortcut 

You verbally allow this to happen without taking payment. A couple of decades later, you want to sell your land.  An issue arises because that person is now claiming a prescriptive easement giving them the legal right to continue walking their dog across your land. The land is to be developed, so this potential private right of way hinders that.

The public can also gain a prescriptive easement, say, where schoolchildren cross land as a shortcut on their way to school for at least two decades. They may be able to claim a prescriptive easement that then gives them the legal right to use that footpath. 

What should landowners do to prevent land and rights being stolen?

• Seek clarification of your land boundaries from a lawyer specialising in commercial property

Your lawyer can help you understand your land boundaries, which can be particularly useful where large estates and farmland are involved. In a potential trespass event, you would then be able to quickly recognise the trespass based on your knowledge of your own land boundaries, meaning that the situation is less likely to fall under the radar and qualify for an adverse possession or prescriptive easement claim.

• Make a voluntary registration application to HM Land Registry

If your land is unregistered, you can make a voluntary registration application or ask your commercial property lawyer to file this with HM Land Registry on your behalf.  It is more difficult for a land thief to adversely possess registered land than unregistered land.

• Don’t let anybody occupy your land without a formal written agreement and/or at least regular bank transfer payment

A formal agreement gives potential land thieves permission to use your land, negating their ability to claim adverse possession through a lack of permission. Evidence of regular payment may help you prove that the land is occupied with your permission – even if it just is to mow the grass!

Your commercial property lawyer can help you draw up an agreement between you and the occupier.  If the potential occupier does not want to enter into a formal agreement, that should act as a sufficient red flag for you to cease dialogue and prohibit their entry to your land.

• Don’t allow anyone to use a shortcut on your land without a formal written agreement

The formal agreement should state where and how they are permitted to pass (i.e., limited to ‘on foot’ or permitting passage with vehicles, etc.) The agreement should be terminable by yourself at any time (for example, with a week’s notice).  Again, your lawyer can draw this up for you and help you with any other stipulations that the occupant should abide by when crossing your land.

• Ask neighbours to be vigilant on your behalf

The more eyes you have out for potential trespassers, the better!

• Secure your land with adequate fencing, gates, locks and signs

You should then be carrying out regular maintenance of those features.  Land thieves like nothing more than an overgrown area that they can cut through and start to cultivate and enclose!

• Immediately remove any hedge saplings, bushes, trees etc. that you have not planted

This should be done earlier rather than later, as the more established these plants are, the more difficult they will be to remove. Land thieves have no qualms about calling the police to claim criminal damage to established plants and structures, whether it is on their land or not!

• Try to mediate through your lawyer, if possible, to avoid a lengthy court dispute

Where you have unfortunately allowed a land thief to enclose land (say by installing a fence or other immediate structure), and the thief is insisting on remaining in possession, then attempt to mediate through your lawyer in the first instance. The courts recommend this initial communication before things turn nasty and become expensive. 

If mediation is not productive, you may consider obtaining an injunction to remove and keep the land thief off your land. Your dispute resolution lawyer can help you with mediation and/or an injunction, as well as helping you secure a satisfactory outcome (particularly if the enclosure has been established for fewer than 10 years). 

Helping you keep your land where it belongs

Land theft can be insidious and stealthy, occurring without the notice or awareness of the landowner. Understanding your land boundaries and being aware of the consequences of allowing access to your land without a formal agreement in place can help you deal with any potential trespass situations quickly and intervene where necessary.

Our expert Commercial Property and Commercial Dispute Resolution teams can assist you to keep your land firmly where it belongs. Please contact us on 0330 221 8855 or email tina.dobbs@attwaters.co.uk if you have any questions about the content of this blog or are concerned about adverse possession or prescriptive easement claims in respect of your land.