Adverse possession is defined as a way of gaining a legal title to real property by “actual, open, hostile and continuous possession of it”, by excluding the actual owner, after a certain amount of time prescribed by the state law. It is also known as “Squatters’ law”.

What it actually means is that if you, as a squatter, have been in “adverse possession” (living in a real property registered or unregistered – you do not own or pay rent for), for a minimum of 12 years. You could apply for registration of title and become the owner of the property without any financial transaction. After 2002, the Land Registration Act established a new regime that applies only to registered land. It also reduced the continuous adverse possession to 10 years before requesting to become the registered owner. On the other hand, the act should actually offer a safety net for the registered (real) owner, him being able to counteract an application following adverse possession.

The law requirements

Which are the law requirements when applying for valid title to property, when in adverse possession?

The adverse possession must be:

• Continuous: The property was in adverse possession under the same adverse possessor or under successive adverse possessors in privity ( legally bind)
• Hostile: In adversity with the owner’s interests
• Open and notorious: the owner must be aware /notified that a trespasser is in possession
• Actual: The real owner has a cause of action for trespass, and he must act according to the statute of limitations
• Exclusive: There has to be a particular person in cause who would acquire the title, once the adverse possession becomes ownership to a real property

You also must prove that you intended factual possession (continuously living in or taking care of the property) and intention to possession (treated the property as yours, making reparations or improving the property).

How can you protect your property as a true owner?

Because the LRA 2002 came into force in October 2003, two different regimes can apply:

1. If your land was occupied for 12 years or more before 13 October 2003 and your adverse possessor can prove both factual possession and intention to possess, you cannot do anything to protect your current ownership
2. If the adverse possession occurred after 13 October 2003, the real owner could counteract the application following adverse possession. The adverse possession is reduced to 10 years, and the adverse possessor must prove that he has any type of right to the land, a reasonable mistake has been made as to boundaries, or you have relied on an assurance from the rightful owner where any withdrawn would be unconscionable.