Adverse possession and leases: can tenants claim land through encroachment

What title can be acquired by someone who encroaches onto neighbouring land where that land is subject to a lease? 

There are two things to consider here, and the answer depends on whether the neighbouring land is registered or unregistered land.

If the neighbouring land is unregistered, then the traditional 12-year limitation period applies, and after 12 years, the paper owner of the land cannot recover possession.

However, where the land has been let to a tenant whose leasehold title is unregistered, while a claim to title by adverse possession is valid as against the tenant, the reversioner would not be statute barred from recovering their land until a fresh 12-year adverse possession period has been completed after the lease has ended, unless the encroachment started before the lease was granted. The tenant might lose its right to recover possession of the land from the adverse possessor, but it can surrender its lease to its landlord.  Time would then start to run again against the freehold owner, who, in the meantime, would enjoy a right to recover possession.

This does not mean that a person who has adversely possessed the land of an unregistered leaseholder cannot apply for registration of title to the land. However, if their application is successful, they may be granted a qualified title, as opposed to a freehold title or possessory title. This is because if there is no registered freehold or leasehold reversion, the Land Registry will only grant a qualified title.

What is the position if the neighbouring land is registered land?

The position is always different in registered land cases because, after the traditional 12-year adverse possession period, the paper owner holds the title on trust for the claimant, who then becomes entitled to be registered as the owner.  In leasehold cases, once the adverse possession period has expired, the tenant's registered title would be held on trust for the adverse possessor, who can then apply to be registered as the owner in place of the tenant.

In the meantime, the squatter's rights would operate as an overriding interest under section 70 (1) (f) of the Land Registration Act 1925.  The practical effect of this is important.  While in unregistered land cases, the tenant could surrender its lease to the landlord, and the landlord would enjoy an immediate right to possession against the adverse possessor, in registered land, the adverse possessor's right to become registered binds the landlord as an overriding interest. 

This emphasises the importance of landlords preventing encroachments by requiring tenants to take preventative measures to prevent anyone from acquiring an adverse possessory title.  Landlords need to be vigilant regarding any potential encroachments to ensure that their tenants comply with covenants to provide notice of encroachments, and tenants are then obliged to take appropriate steps to prevent any encroachment.

What about if a title is acquired by a tenant who encroaches onto the neighbouring land owned either by a third party or by the tenant's landlord?

A tenant who encroaches onto land belonging to a third party is presumed to have done so for the benefit of the landlord, and the additional land acquired, based on the successful adverse possession application, forms an accretion (addition) to the lease.  The acquisition of land is by the landlord and any application for registration of the land under Schedule 6 of the Land Registration Act 2002 should, on this basis, be by the tenant's landlord. 

The Land Registry does accept that the presumption underlying this may be able to be rebutted and that the tenant might want to assert that it acquired adjacent freehold land for itself.  If that is the case, then the Land Registry guidance makes it clear that the tenant must highlight this in their application. 

A tenant who encroaches on land outside their lease and onto other land owned by their landlord cannot adversely possess that land and apply to be registered as the owner.  This is due to the principle that a tenant is estopped from denying their landlord's title. 

The tenant cannot make a claim to the landlord's freehold land.  Where a tenant has encroached onto land belonging to its landlord, it will be presumed, after the expiry of the limitation period, that the land is in addition to the land demised by the lease. 

The additional land will be subject to the terms of the tenant's lease.  Although the tenant has a form of title to the land as against its landlord for the term of the lease, the land must be returned to the landlord when the lease comes to an end.

A real-life example of this is the 2025 case of McGee and McGee vs Long Term Reversions (Harrogate) Limited.

The facts in the case were that Mr and Mrs McGee were the owners of a long lease of a residential flat. The flat had access to loft space through a hatch in the roof, although the loft space was not demised as part of the lease. The McGees had used the loft for storing their goods for many years and applied for a possessory title of the loft space. The Tribunal held that encroachment is a distinct doctrine from adverse possession and that an estoppel argument arises in the context of a landlord-tenant relationship.

A tenant is, except in very limited circumstances, estopped from denying their landlord's title such that they are deemed to possess any additional land as the tenant of their landlord. This means that a tenant cannot defeat the landlord's titles and cannot claim the landlord's land as their own. In effect, a tenant, except in very limited circumstances, cannot claim ownership of their landlord's land through adverse possession, but they can apply to formally incorporate it into their lease.

Essentially, the decision in McGee could make it easier for tenants looking to claim additional land and add it to their lease, and landlords ought to be wary of this and consider challenging encroaching tenants before the expiry of any relevant 10 or 12-year period.