Property Law II, 2010-2011, UCD School of Law

CLASS 1: ADVERSE POSSESSION 1. DEFINITION Acquisition of title by means of the passage of time; the squatter fulfils the requirements of AP for the relevant period of time thereby exhausting the right of the paper owner to instigate a cause of action resulting in the extinguishment of the paper owners title. Governed by: Statute of Limitations 1957 Squatter is always acquiring rights, or growing her possessory title over the land Mere possession is not sufficientas demonstrated under no. 3 below the possession must have particular characteristics to qualify 2. JUSTIFICATORY DEBATES Squatting as theft? Hayward v Chaloner [1968] 1 QB 107 Vigilantibus non dormientibus, jura subveniunt Quieting of claims and quieting of title Lockes labour-desert theory Radins theory of property as personhood 3. REQUIRED ELEMENTS OF ADVERSE POSSESSION Section 14(1), Statute of Limitations 1957: Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.
A.

FACTUAL POSSESSION

Powell v McFarlane (1970) 38 P&CR 452, per Slade J: "Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which the land of that nature is commonly used or enjoyed Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it and that no-one else has done so." Demonstrating factual possessiondepends on nature of the land itself, e.g. Red House Farms Ltd v Catchpole [1977] 2 EGLR 125 (shooting pheasants)

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B.

POSSESSION THAT IS ADVERSE

Doyle, Administratrix ad Litem of James Doyle deceased v ONeill [1995] IEHC 4 acknowledgement of title Battelle v Pinemeadow Ltd [2002] IEHC 120ambivalence of the paper owner Bula Ltd v Crowley [2003] 2 ILRM 401receivership and agency c. WITH ANIMUS POSSIDENDI Section 14 requires that the paper owner would be dispossessed or that his possession would be discontinued by the actions of an adverse possessor. Is there some land that is incapable of discontinuation of use? Dundalk UDC v Conway [1987] IEHC 3 Dispossession = possession + animus possidendi; in order to succeed in any claim for AP animus possidendi must be establishedMurphy v Murphy [1980] IR 183 Animus possidendi is classically defined by Slade J. in Powell v McFarlane (1977) 38 P&CR 452 thus: What is really meant, in my judgment, is that the animus possidendi involves the intention, in ones own name and on ones own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow. Courts require clear and affirmative evidence of animus possidendi: must assess the actions by which the possessor may have made the intention evident Whether or not any actions will suffice to establish animus possidendi will depend on the particular circumstances of the case at Bar. The Lord Advocate v Lord Lovat (1880) 5 App Cas 273 per OHagan L.J.: consider whether there is animus possidendi by reference to factors such as the character and value of the property, the suitable and natural mode of using it [and] the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests. Examples: Hickson v Boylan [1993] IEHC 1 Egan v Greene Unreported, High Court, 12 November 1999 Buckinghamshire County Council v Moran [1990] Ch 623fencing; locking; incorporating into garden Particular difficulty: land for which the owner has a future intended use, rather than a present use Leigh v Jack (1879) 5 Ex D 264 UK Position: Buckinghamshire County Council v Moran [1990] Ch 623 -2-

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JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419Leigh principle is heretical and wrong Beaulane Properties Ltd v Palmer [2006] Ch 79 Ofulue v Bossert [2008] EWCA Civ 7 Land Registry: Additional practice affecting Practice Guide 5

Irish Position: Cork Corporation v Lynch [1995] 2 ILRM 598 decided 26 July 1985 Durack (Samus) Manufacturing Ltd v Considine [1987] IR 677 Feehan v Leamy [2000] IEHC 118
D.

FOR THE REQUIRED PERIOD OF TIME

Section 13, Statute of Limitations 1957 Adverse possession against a state authority: 30 years Adverse possession of the foreshore: 60 years Adverse possession against non-state authorities: 12 years Section 2, Statute of Limitations 1957: State authority means any authority being (a) a Minister of State, or (b) the Commissioners of Public Works in Ireland, or (c) the Irish Land Commission, or (d) the Revenue Commissioners, or (e) the Attorney General. Section 72(1), Statute of Limitations 1957: Where, in the case of any action for which a period of limitation is fixed by this Act, the action is for relief from the consequences of mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it. Mistake in title covered by s. 72(1) Less certainty re mistake as to whether or not the possessor has title in the land. Contrast Murphy v Murphy [1980] IR 183 with Kelleher v Botany Weaving Mills Limited [2008] IEHC 417 Consider these cases in the light of s. 14(1), Statute of Limitations 1957: Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

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Fraud: the limitation period will not begin to run in favour of the squatter until such time as the landowner discovered the fraud, or could with reasonable diligence have discovered it (s. 71, Statute of Limitations 1957) Disability as defined by s. 48, Statute of Limitations 19576 years from the time the disability ceased (s. 49(1)): If, on the date when any right of action accrued for which a period of limitation is fixed by this Act, the person to whom it accrued was under a disability, the action may, subject to the subsequent provisions of this section, be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred notwithstanding that the period of limitation has expired. 4. ASSERTION OF TITLE BY PAPER OWNER Stops the time from running in favour of the adverse possessor Statute of Limitations 1957, ss 5060: acknowledgment of title Statute of Limitations 1957, ss 61-70: payment or part payment to the paper owner Brian Mahon v Edward O'Reilly and Teresa O'Reilly [2010] IEHC103 5. EFFECT OF SUCCESSFUL ADVERSE POSSESSION OF FREEHOLD LAND Statute of Limitations, s. 24extinguishment of title of the paper owner Original position: parliamentary conveyance operated (Doe d Jukes v Sumner (184) 14 M & W 39; Rankin v McMurty (1889) 24 L Ir 290; Kennedy v Woods (1868) IR 2 CL) Present position: the successful adverse possessor acquires a fee simple subject to all superior interests and subject to all third-party interests as he can never qualify as the bona fide purchaser for value without notice (Griffin v Bleithin [1999] 2 ILRM 182). English position (pre-LRA 2002): Unregistered landdispossessed owners right to recover is barred and title is extinguished (s. 17) and squatter holds under a new title; the squatter is the holder of a fee simple estate although subject to pre-existing third party interests Completion of the limitation period against the tenant extinguishes the tenants title against the squatter although not against the landlord Registered landLaw of Property Act 1925imposition of a trust in favour of successful squatter 6. ADVERSE POSSESSION OF LEASEHOLD LAND Tenant successfully completes AP on the land of third party: property rights acquired pass to landlord on termination of lease (i.e. presumption of accretion)

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A tenant cannot be in adverse possession against his own landlord unless he becomes a tenant at sufferance (s. 11(3), Statute of Limitations 1957). A third party can adversely possess against the landlord while the landlord is not entitled to possess the land (because there is a leasehold relationship in place) by receiving rent from the tenant for a period of 12 years or more, where the rent is in excess of 1 (i.e. 1.37) per annum and the third party is not an agent of the landlord (s. 17(3), Statute of Limitations 1957). Difficulty: where a third party adversely possesses against a tenant Adverse possession against a tenant does not extinguish the right of the landlordthe time does not run against the landlord until the lease has come to an end (s. 15(1), Statute of Limitations 1957). Can the landlord bring the lease to a premature end? English & Welsh law o Tichbourne v Weir (1892) 67 LT 735 o St. Marylebone Property Company Ltd v Fairweather [1963] AC 510 Irish law o Perry v Woodfarm Homes [1975] IR 104 o Reform? LRC, Report on the Acquisition of Title by Adverse Possession (2002)

7. ADVERSE POSSESSION AND THE ECHR JA Pye (Oxford) v United Kingdom, Judgment of the Grand Chamber, App. No. 44302/02, 30 August 2007 8. COMPARATIVE PERSPECTIVE: ADVERSE POSSESSION AND THE LAND REGISTRATION ACT 2002 (UK) Major changes introduced for a number of reasons: (a) System originally devised for unregistered land (b) Concept of registered title undermined by AP (c) Rationales for AP dont generally stand re registered land New schemes.s. 96-98 LRA 2002 Apply to all AP claims re registered land except those where limitation period was completed prior to LRA 2002 coming into effect in October 2003. The process is laid down in Schedule 6 to the LRA 2002 1. Squatter who has been in AP for ten years can apply to be registered as owner requirements of AP remain the same 2. Registrar gives notice to registered owner and legal mortgagees or, where leasehold, freeholder and any intervening landlords 3. If registered proprietor does not object or fails to respond squatter is registered as owner -5-

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4. If registered proprietor does object the application will generally be rejected subject to three exceptional circumstances considered below 5. If agreement is not possible the application is forwarded to an Adjudicator 6. If the application is rejected the owner can repossess within two years; failure to do so entitles the squatter to entry onto the register Exceptional circumstances: (a) Estoppelpara 5(2), Schedule 6 (b) Some other right to the landpara 5(3), Schedule 6 (c) Reasonable mistake as to boundariespara 5(4), Schedule 6 Successful squatter is registered as proprietor under Schedule 6receives the class of title that was held by the dispossessed proprietor Squatters interests are no longer overriding (exception: squatters in actual occupation)

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