Did you know that many people have lost rights to their land due to a legal process called adverse possession? There is a reason why many landowners are wary of people squatting on their land, as they know just how much this can affect their rights to their property. If you’ve ever been curious about why this is the case and why you need to keep people from using your land, this guide walks you through this legal issue step by step.
Understanding Adverse Possession
Adverse possession is a legal doctrine in Kenya that was borrowed from the English Common Law. It states that where a person has lived on another person’s land for 12 years and above, they can petition to be the owner of that said land.
It is a legal doctrine that has been used in urban areas where land is of a premium value, in rural areas, and also in cultural or communal ownership of land, which has brought about many cases and disputes.
Adverse possession has been used or has been attempted to be used as a path to ownership of land. It has hence had a great impact on how land is utilized and owned in Kenya, and it has led to many legal challenges and even economic challenges because where there is a land dispute, the development of the said land is hindered. As a result, this legal doctrine has led to the need for reforms in Kenya’s land laws.
Challenges in Adverse Possession
Adverse position has led to various legal challenges, including challenging the landowners’ right to own that property. It has hence led to the need for reforms in our current land laws to help secure the rights of property owners. However, it is worth noting that there are certain requirements and our laws that must be met before adverse possession can be successful. These requirements include:
- The notorious occupation of the other person’s property. This occupation must be open and apparent, and in the face of the rightful owner.
- The requirement of an exclusive position or use of that property. This means that the adverse possessor must be occupying that property alone then without others.
- The requirement of hostile occupation of that property – this means that the property must be occupied by the adverse possessor without being given permission by its full owner.
- The adverse possessor must occupy that property continuously without breaks for 12 years or more for adverse possession to arise successfully.
Can You Acquire Land Through Adverse Possession?
When someone presents a petition to recognize the root of that property, evidence will be required as per the law, and this is one of the issues that makes it a big challenge for one to acquire property using adverse possession. After all, the person claiming ownership of the property must prove that they have used another person’s property openly, notoriously, continuously, and exclusively for 12 years without breaks. As such, it is almost impossible to prove this. However, there are cases where it happens, and in such cases, the adverse possessor can acquire the land and have it registered in their name.
The Need for Legal Advice
Given the requirements to acquire land through adverse possession, it is important for anyone who seeks to acquire property through this pathway to first consult experienced conveyancing advocates in Kenya. This way, they can know what is required and if the opposition merits them being granted the said land ownership. It is also important to know that the land owner has the right to defend their ownership of that plot of land. As such, the rightful owner will likely consult experienced lawyers to help them defend their ownership.
From the above, it is clear that both parties will require the services of an experienced conveyancing advocate in Kenya, as the laws and timelines for adverse possession to arise successfully may be different in other countries. Relying on a lawyer who is well-versed in Kenyan laws will ensure that the person claiming the land can present their position in a sound and legal manner and package their case per the laws, thus increasing their chance of success.
Unsure where to start? Our experts at The Law and You are here to help. Simply fill in the form below, and one of us will be in touch with you shortly.