Adverse possession and easements are distinct and separate doctrines in English Land Law, yet in practice, the two can often be confused. It is essential that the distinction is understood to ensure that the correct Land Registry application is advanced to adequately protect the entitlement sought.
Adverse possession can transfer the registered title (ownership) of land to a person claiming possession, even if the land is already registered to someone else. Meanwhile, an easement is a limited proprietary right to use, or restrict the use of, another person’s land. An easement does not amount to ownership in the same way as adverse possession does.
The dividing line is typically whether the acts relied upon amount to use of another’s land for a limited purpose or does the use, instead, amount to exclusionary control (factual possession plus intention to possess) and which is the hallmark of adverse possession.
On a practical day-to-day basis, land users can often blur the distinction between what might be classed as ownership and what is more accurately classed as an easement. This misunderstanding is most apparent when considering the acquisition of a right-of-way.
Use consistent with a right of way (an easement) is often not enough to show the unequivocal intention to possess the land itself. The High Court has reaffirmed that conduct consistent with exercising/protecting a right of way may be limited in scope and therefore fail to establish adverse possession of the strip/passageway in question.
This can be quite a complex distinction to establish if seeking to suggest that entitlement is superior to the limited use of an easement. Many adverse possession applications fall at the first hurdle with the Land Registry and on the basis that the use is akin to an easement as opposed to exclusive possession. In essence, if the Land Registry feel that the use is consistent with an easement, then title ownership cannot usually be acquired. The two legal doctrines address different considerations (title vs use) and the type of use acquired will be slotted into one of those doctrines. The Land Registry seek to keep the two doctrines distinct from each other and is reluctant to blur the lines.
Some examples of use that amount to an easement as opposed to use consistent with ownership:
- A use of land as an access or egress
- Using land to store materials – i.e. bricks, hardcore storage on a yard
- Parking cars in marked bays or more haphazardly
- The laying and maintenance of drainage/service media
- Using an area as a turning circle for a vehicle or when swinging a vehicle into an access point
The question is often posed in response to a Land Registry rejection of an adverse possession application – why can’t it be adverse possession? Surely, if you have used a parcel of land and have chosen to use that strip of land to lay a track, then you have an intention to possess. You have an intention to use the land as your own and for purposes tailored to your desired use or preference. Just because your desired land use is to utilise the land as an access, why should that be a bar to establishing ownership? Whether conduct is “easement-like” will depend heavily on the degree of exclusivity and physical control.
The outcome of a Land Registry finding (or Tribunal determination if matters proceed that far) has a fundamental impact. A successful adverse possession application confers exclusive possession consistent with ownership over the whole of the area claimed. A finding that the use is akin to an easement confers a qualified use (or restriction) over the land in question and such use is limited in scope and scale. It is not open to the user, in such a circumstance, to use the land as their own or for purposes other than the easement as recorded. The true landowner retains ownership and can use their land as their own, subject to the parameters of the easement if established.
Our specialist team can support you with your legal rights and responsibilities so that you do not get caught out. Contact Catherine Gregson today for help.