Adverse Possession Land Law

January 9, 2017 Law

Adverse Possession.

The right to claim title through AP has long been established as an integral part of our system of land law. (Wallace) The law relating to acquisition of title by AP in the Republic of Ireland is governed by the Statute of Limitations 1957. The Statute allows for a trespasser to extinguish the rights of the true owner of land if he enjoys 12 years of uninterrupted possession of the land, however this period could be made up by a series of successive squatters. Wallace justifies the doctrine; ???the policy considerations which gave birth to it are centred around a desire for stability of title with all its social and economic advantages??? and Lyall reinforces the rationalization; ???those who have rights should actively pursue them??? Another logical reason for the doctrine applies typically in Irish cases where a family deliberately try to save money and rather than administrate their estates taken under intestacy, rely instead on the law of limitation to secure their titles.

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In order for time to begin to run against the true owner, Section 14 states ???the right of action shall be deemed to have accrued on the date of the dispossession??? while Section 18 of the Act goes on to state ???no right of action to recover land shall be deemed to accrue unless the land is in possession of some person whose favour the period of limitation can run??? As well as this the squatter must have the requisite ???animus possidendi??™ or intention to possess.

Dispossession

Establishing possession or discontinuance thereof seems to sway more in favour of the landowner rather than the squatter in the Republic of Ireland. Buckley ???AP at the crossroads??? reiterates a passage from Lord O??™Hagan in The Lord Advocate v Lord Lovat (YEAR) that provided much persuasion in subsequent Irish case law relating to possession. ???As to possession, it must be considered in every case with reference to the peculiar circumstances??¦The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow-all these things??¦are to be taken into account in determining the sufficiency of a possession.???

This case was cited in Browne v Fahy (1975), where Kenny J held that the property was of little value and the only way that the owners could use the land was by walking on them. Subsequently it was found that the owners had in fact walked on the land and so retained possession.
Again in Dundalk Urban District Council v Conway, the land was held incapable of actual use and enjoyment and thus, despite the owners neglect, he was not considered as having been dispossessed. The defendant in Mulhern v Brady (2001) was deemed to have retained possession by visiting the plot 4/5 times a year, putting up a for sale sign and asking a trespasser to remove his cattle from the land. This very low barrier for maintaining possession was further endorsed by Finnegan J in 2002 in Feehan v Leamy. The judge remarked ???the only use to which the plaintiff put the land was to visit it on a number of occasions each year when he would park his car and standing on the road or in the gateway, look over the hedge??? The judge concluded that he was not dispossessed. ???The plaintiff was exercising all the rights of ownership which he wished to exercise in respect of the lands.??? Buckley ???AP at the CR??? opines on the judgement; ???whilst the correct conclusion on the facts, Feehan v Leamy sets the bar too low if peering over the hedge can defeat AP. The scales are tilted perhaps too heavily in the paper owner??™s favour.???

Acts of possession by squatter

On the flipside, it has proven difficult in Ireland to prove adverse possession by the squatter. In Doyle v O??™Neill, O??™Hanlon J required conspicuous acts asserting ownership: ???the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alert to his rights that occupation adverse to his title was taking place.??? Trivial acts of possession on the part of the squatter, such as grazing ponies on the land, were not deemed sufficient to amount to AP in Tecbild v Chamberlain (1969) and neither was the occasional use of land for grazing of cattle in Egan v Greene (YEAR.) The case of Powell v McFarlane determined that unequivocal steps such as erecting a fence would amount to AP such that the owner would be dispossessed.

Fee simple v leasehold

Woods-???the flaw in the legislation in each of the three jurisdictions is that it is ominously silent as to the type of title acquired by the squatter??™ The earliest judicial view in relation of the 1833 act was in the words of parke b that ???the effect of the act is to make a parliamentary conveyance of the land to the person in possession after that period of 20 yrs has elapsed??™

this view was upheld in relation to leasehold land in rankin v mcmurty in Ireland in 1889. holmes j ???the estate the right to which is extinguished so far as the original owner is concerned became vested in the person whose possession has caused such extinction??™ Gibson j ???I think the defendants have in some way become owners of the lease??™

In England, 3 years later, the idea of a parliamentary conveyance was rejected in the court of appeal by tichborne v weir a case on leaseholds. It was held adverse possession merely extinguished the title of the dispossessed owner and did not operate as an involuntary transfer to the squatter in leaseholds only. (there is in relation to freehold)

Fair-weather v st marylebone property 1963. house of lords. The disposed neighbour held under long lease so that the squatter acquired no rights over the freehold reversion. The majority held that upon a premature surrender of the lease by the disposed tenant the landlords interest in the freehold of the disputed property immediately fell into possession thus enabling him to eject the squatter.
Wallace-???the rationale behind the decision was that the dispossessed tenant??™s title was extinguished as against the squatter it remained good against the landlord because since the limitation act did not operate as an involuntary assignment, nothing had occurred to affect the relationship between the landlord and the dispossessed tenant.??™
Wallace??™ ???decision in fair-weather represents the current law in England creates a number of abnormalities in the law relating to adv.pos of leaseholds??™
Wallace??™the house of lords effectively decided that a squatter on leasehold lands must be perpetually subject to the threat of instant eviction. Consequently the interest which he acquires cannot be a marketable one??™ ???for example had the landlord in fair-weather refused to accept a surrender of the lease then the dispossessed tenant would have remained liable for all the obligations created by the lease even though effectively deprived of the benefits.

The opportunity to re-examine the question was presented to the irish supreme court in perry. Griffen j- the dispossessed lesees could not give to the company a right to possession which they themselves no longer had and concluded the squatter was entitled to continued possession ???for the unexpired portion of the term subject to the risk of forfeiture??™ walsh j- the disposed tenants must be regarded as having lost all title to the leasehold estate with the consequence that there was nothing left to assign or surrendur??™
Wallace-???it was not until 1974 in perry v woodfarm that the notion of a p/c was rejected and the position in Ireland was finally put beyond doubt.??™ ???this rejection of the concept of a statutory transfer is of little consequence where a squatter establishes adv.pos of a freehold estate, but its potential implications are of the greatest magnitude where a leasehold estate is involved.??™
Rejected the distinction between leaseholds and freeholds in tichborne.
Wallace-???it now seems that in the rep of Ireland a squatter on leasehold lands who has established the requisite possession is safe from the possibility of eviction brought about by a surrender of a lease by the dispossessesd tenant. However his position still remains far from secure because he remains vulnerable to a forfeiture??™ his position is particularly precarious where he takes possession of an entire leasehold estate. In such a case the dispossessed tenant will be unlikely to pay rent to keep the squatter safe and the latter may not even know the amount payable or the identity of the landlord. He may inadvertently bring about his own downfall by an innocent breach.

Woods- one of the main criticisms that can be made in relation to perry is that where the land is unregistered leasehold land the squatter acquires no interest which is capable of registration in the land registrary. He cannot make an application for first registration based on long possession.

Wallace-these difficulties arise from earlier decisions which rejected the notion of ???p/c??™ thereby depriving the squatter of the status of lesee but a golden opportunity for a re-appraisal of the issues was not taken by the supreme court.
Perry has worsened the plight of the dispossessed tenant by depriving him of his clearest avenue of escape ie by a surrender of the lease.

Wallace concludes-???it is therefore submitted that a return to the notion of a p/c provides the most equitable and practical solution to the problems which have again been highlighted in the perry case.
Woods-the squatters plight could be said to be slightly better in Ireland in that the disposed lesee cannot surrender his interest to the landlord.
Woods concludes-???the practice in the land registrary og treating the squatter as if there had been a staturoty transfer of the land to him is the one which makes the most sense

Animus possidendi

Intention to possess is another requisite element in establishing AP on the part of the squatter. Lyall outlines the concept of ???animus possidendi??™; ???it is supposed to import an intention on the part of the occupier to possess the land in a way or for a purpose which is inconsistent with the owners rights. But this does not imply that he or she must be aware that a title exists as to which their own possessory title is adverse.??? He summarises this by saying ???what matters is the use to which the land is put..(and some land can only have certain uses)..and whether the use to which the occupier put the land actually interfered with that use???
It is well established that a belief by that squatter that he is actually the owner of the land satisfies the requisite intention. An interesting argument is put forth by Louise Tee (AP and the intention to possess) she references radley-gardner and harpum (same title) they state a written acknowledgement operates to estop the squatter from thereafter asserting and relying upon his prior period of limitation but also endorse the argument that a squatter cannot logically be required to prove an intention to do something which he could not lawfully do. (ie exclude a paper owner that he knows of)
In 1980 in the case of Murphy v Murphy, Costello J considered was the defendants possession inconsistent with and in denial of the legal owners rights of the land Kenny J stated in the Supreme Court the inconsistency with the true owners rights involves ???an intention to exclude the true owner, and all other persons, from enjoyment of the estate which is being acquired??? In Doyle v O??™Neill (1995), the Court was satisfied that because the squatter acknowledged the land belonged to another in America, he lacked the requisite intent to exclude the true owner. Buckley comments on Murphy and Doyle stating they offer, ???strong authority requiring conspicuous possession from the squatter??? which offers a ???firm safeguard against dispossession by stealth???

Future Intention of the owner

It has been established that the intention of the squatter is not the only intention relevant to proving AP. The well-known English case of Leigh v Jack in 1879, brought about a doctrine which provides that where the true owner has no immediate use for the land but does have a specific use intended for the future, possession by the squatter which is not inconsistent with this future use can never amount to AP. Cockburn CJ said that the defendant did not intend to be a trespasser and knew that the land was intended for future use. Bramwell LJ indicated that had the squatter built on the land or cultivated crops (adverse acts), the result might have been different. ???acts of user are not enough to take the soil out of the plaintiff..in order to defeat a title by disposing??¦acts must be done which are inconsistent with the owners enjoyment of the soil for the purposes which he intended to use it??™
This issue of knowledge of the true owners future intent was addressed in Buckinghamshire County Council v Moran in 1990, when Nourse J held ???normally in an AP case the intention of the true owner is irrelevant unless the squatter knows about his future plans and this impacts on his ???animus possidendi??™??? ie the squatter only intends to use the land in the mean time.
The High Court in Ireland and Egan J applied Leigh in Cork Corporation v Lynch which was heard in 1985, and held possession could not be adverse because of the true owners future plans. Some commentaters have criticised this ruling namely Mee who opines the judge may have been swayed by the fact that the plaintiff was a Corporation and felt it was an unfair judgement because the squatter had fenced and resurfaced the land. Brady and Kerr in ???The Limitations of Actions??™ label the judgement curious, where the ???focus ceases to be on the actions of the intruder??¦but rather shifts to the documentary owner to explain away his inactivity during the period when time was running against him.??? Wylie further suggests that the more orthodox view is that the ???primary considerations in each case must be factual possession coupled with intention to exclude all others, not the issue of any future purpose of the paper owner.
Barron J declined to follow the approach in leigh 1987 in the case of Durack Manufacturing v Considine declaring; ???there seems to be no reason in principle why the relevant provisions of the Statute of Limitations 1957, should be adapted to allow for the case of an owner who stands by and allows another to use his land merely because he wishes to use it for a specific purpose in the future??? Subsequently he held that the only relevant intention was that of the squatter and adverse possession had been established.
The recent case of JA Pye (Oxford) Ltd v Graham. Kord browne-wilk stated that the intention of the true owner is irrelevant ???sufficiency of the possession can depend on the intention of the true owner is heretical and wrong??™ ???whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner??™

Successive adverse possers

Lyall-if a dispossesser transfers his title to a third party the period of possession of such a transfer constitutes part of the title of the transferee. However if some one abandons their possession and another enters into possession immediately after their departure, the new person cannot make use of his period of possession. Mount carmel investments-

Legal proceedings

If the owner commences legal proceedings the limitation will stop running. However a solicitors letter was not deemed sufficient in mount carmel investments.

Acknowledgement

If someone in adv.pos indicates that they recognise that the dispossessed person is the lawful owner of the land this is inconsistent with their own adverse title. Time begins to run afresh against the dispossessed owner. Time runs from the date of a written and signed acknowledgement by or on behalf of the defendant of the plaintiffs title.

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