Adverse Possession

Question 1

What statute governs AP?

Answer 1

AP is governed by the Statute of Limitations 1957 which states that where someone ‘squats’ on another’s
land for a required period of time, the landowner’s title (legal entitlement to the prop) is extinguished.

Question 2

Limitation Periods

What are the limitation periods and what section governs them?

Answer 2

S.13 Statute of Limitations 1957: Sets out the relevant limitation periods:
(a) Generally, a squatter must complete 12 years of adverse possession.
(b) If squatting against a state authority, must complete 30 years of adverse possession. Includes
Ministers, Commissioner of Public Works, the Irish Land Commission, Revenue, the AG.

Question 3

Limitation Periods

The limitation period can be extended, what ways?

Answer 3

(a) S.72(1) states ‘the period limitation shall not begin to run until P has discovered the mistake or could with reasonable diligence have discovered it’. This is directed towards mistake in title in particular.
(b) S.14 and Murphy v Murphy [1980]: There is no postponement where someone is simply unaware of their title over the land or the fact they are in adverse possession
(c) Disability: The running of the limitation period can also be postponed in cases of disability. This
includes infants (under 18), persons of unsound mind, convicts subject to the Forfeiture Act 1870.

Question 4

Limitation Period

Murphy v Murphy [1980]

Answer 4

• Dad died. Left farm in 3 parts to wife and 2 sons. Held on trust for 10yrs then each of the 3 were to be absolute owners. One brother (P) sold his share to the other (D).
• D farmed the entire land as if it was his own, fenced, farmed + grazed all the lands.
• The mother wasn’t aware that she owned part of the lands, nor was the son who bought it.
• Mum died. Left entire estate P who’d sold his share. He sought mum’s portion, but D claimed AP.
• Did time run against the mum in adverse possession when she was not aware of her rights? Held it did
• Held the fact the brother didn’t realise he was in AP as he honestly believed he owned it not relevant
• Period runs once landowner either has his enjoyment of the land discontinued or been dispossessed (s.14)

Question 5

Requirements of AP

What are the three requirements of AP?

Answer 5

The squatter must (a) be in possession, (b) adverse to the landowner and (c) in a manner that discontinues
the landowner’s use and enjoyment of the land or dispossesses the landowner

Question 6

Possession

Define possession and identify the relevant provision?

Answer 6

Defined as the use + enjoyment of land. S.18(1) SOL: Must be in ‘actual physical + continuous possession’
 The acts of possession must be exclusive, non-consensual, strong and obvious.
 If the owner continues to engage in acts of possession or if squatter only in occasional use, defeated

Question 7

Possession

Dunne v Iarnroad Eireann [2007]

Answer 7

• IEHC held possession is: ‘factual possession signifies an appropriate degree of physical control’
• ‘It must be a single and conclusive possession though there can be a single possession exercised by several persons. The Q of what acts constitute a sufficient degree of physical control depends on the circs + in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed

Question 8

Possession

Doyle v O’Neill

Answer 8

If permission of landowner is sought by squatter, possession is no longer adverse

Question 9

Adverse

What makes possession adverse?

Answer 9

This possession can’t be as a result of permission or agency. Whether possession is adverse depends on circs. Possession is not adverse where possessor asks permission of owner or is a receiver/agent of owner

Question 10

Adverse

Battelle v Pinemeadow Ltd [2002]

Answer 10

• P owned a plot of land. Asked owner of neighbouring land whether a piece of overrun land at boundary of the 2 properties was owned by the neighbour: said he didn’t know but wasn’t interested in it anyway.
• P took possession, cleared it up and used it for over 20 yrs. D then bought the neighbour’s plot of land + on realisation their predecessors in title had ownership of the former overrun land, tried to take possession
• P argued he’d a right to the land via AP. D argued no AP as P used land w permission of previous owner.
• HC held for P: an owner saying he doesn’t know if he owns it + doesn’t care is not permission to use land

Question 11

Adverse

Dolan v Reynolds [2011]

Answer 11

• Son (D) resided in the prop since 1978 +looked after mum + sole occupant after mum’s death in 1992.
• Said he spent 75k+ renovating and repairing. Said all family agreed + acquiesced to these works. AP?
• Held the works + money on the house were done w knowledge + encouragement of father
• Crucially, the mother acted as security for the loans for renovation: indicates NO exclusion thus no AP

Question 12

Discontinuance or Dispossession

What must the squatter show re Discontinuance or Dispossession?

Answer 12

Squatter must show he’d discontinued the landowner’s use + enjoyment of prop or dispossessed the landowner

Question 13

Discontinuance or Dispossession

Dundalk UDC v Conway [1987]

Answer 13

• Can’t discontinue use + enjoyment if land’s incapable of being used/enjoyed bc of its nature e.g. swamp

Question 14

Dispossession: Animus Possidendi

Define dispossession and animus possidendi?

Answer 14

Dispossession: Possession of the land by an adverse possessor who has the requisite animus possidendi i.e. an intention to exclude world at large. Intention is proved by examining statements + actions of AP (fences, etc.)

Question 15

Dispossession: Animus Possidendi

Murphy v Murphy [1980]

Answer 15

• For AP must have intention to exclude true owner + all other persons from enjoyment of the estate.
  Whether actions satisfy animus possidendi depends on (i) the character and value of the property, (ii) the suitable and natural mode of using it and (iii) the course of conduct a proprietor may reasonably be expected to take w due regard to his own interests.

Question 16

Dispossession: Animus Possidendi

Egan v Greene [1999]:

Answer 16

Occasional grazing of cattle w/o owner object insufficient but cutting of turf is for animus

Question 17

Dispossession: Animus Possidendi

Byrne v Dublin County Council [2018]

Answer 17

• Successful AP where an occupier of house engaged in use of land at the back of the house as a garden
• She mowed, hosted family events, made improvements (bbq, patio, etc.): Animus + Factual possession

Question 18

Dispossession: Animus Possidendi

Hamilton v ACC Loan Management [2018

Answer 18

• Successful AP: farmed exclusively for 12 yrs + got farm grants to maintain: animus + excl. possession

Question 19

Intended Future Use

What was the old rule re intended future use?

Answer 19

It was previously thought that a squatter of land that a landowner had acquired for a future purpose but not yet used for it had to do something inconsistent with the intended future use to successfully claim AP

Question 20

Intended Future Use

Leigh v Jack [1879]

Answer 20

• P sold plot to D (built factory) south of a piece of land kept by P + on which P intended to build road
• 1854: stored materials on P’s land making it impassable unless by foot. 1865: D fenced off some of the land. 1872: D fenced in the ends of the intended street. P attempted to repossess, but D claimed AP
• Held D failed to show animus possidendi HELD acts of the user that are committed on land but don’t interfere with and are consistent with the owner’s intended future use of the property do not amount to ‘dispossession’ for lack of animus possidendi.

Question 21

Intended Future Use

Leigh v Jack [1879]

Answer 21

• P sold plot to D (built factory) south of a piece of land kept by P + on which P intended to build road
• 1854: stored materials on P’s land making it impassable unless by foot. 1865: D fenced off some of the land. 1872: D fenced in the ends of the intended street. P attempted to repossess, but D claimed AP
• Held D failed to show animus possidendi HELD acts of the user that are committed on land but don’t interfere with and are consistent with the owner’s intended future use of the property do not amount to ‘dispossession’ for lack of animus possidendi.

Question 22

Intended Future Use

Buckinghamshire CoCo v Moran [1990]

Answer 22

UK abandoned intended future use rule.

Question 23

Intended Future Use

Cork Corporation v Lynch [1985]

Answer 23

• CC acquired plot of land in 1965. Intended to use as part of road widening scheme.
• The land was adjoined by L’s garage business + L in habit of using the land to dump crashed cars on
• 1960: L began using rest of plot for parking cars, then laid chippings + tarmac on the remainder.
• 1973: L put fence around plot + wire bw plot and his garage. Claimed entitled to land by AP.
• HC found for CC: Held no right of action accrued to CC as they hadn’t been dispossessed. C acquired
  the land for specific purpose + D’s actions not inconsistent w this. Failed Leigh test + no animus poss.

Question 24

Intended Future Use

Durack Manufacturing v Considine [1987]

Answer 24

• Sister of D sold land to P w covenant bro (D) could use the shed on the land as long as she was alive.
• D did more than use the shed: fenced off the land, used the field and put a cattle trough on it.
• Sister died + P wanted to build on the land and claimed under Leigh v Jack principle.
• HC placed importance on D’s intention and not P’s intended future use. Held D got title by AP.
• Test: Held anyone claiming AP must establish animus possidendi; the future intended use of the land by the owner doesn’t affect this obligation: this minimises the impact of Leigh v Jack in Irish law.
• However, the future intended use might be relevant if the alleged squatter knew of it and as a result, intended to possess the land in the interim period only (therefore lacking animus possidendi).

Question 25

Intended Future Use

Feehan v Leamy [2000

Answer 25

Followed Durack

• Held Leigh was misunderstood + approved Durack. Also instructive re interruption of AP.
• Here P defeated a claim of AP even though only use he put the land was visiting it a few of times a year to park his car, stand in the gateway and look over the hedge at the land. D didnt prevent him, so no animus P
• AP must carry out acts from which an intention to exclude all others can be inferred + future intended use is only of relevance inasmuch as it may have had an impact on the state of the mind of the squatter.

Question 26

Intended Future Use

Mulhern v Brady [2001]:

Answer 26

AP defeated as owner visited the land regularly asking for the cattle to be removed.

Question 27

Intended Future Use

Tracey Enterprises MacAdam Ltd v Drury [2006]

Answer 27

• P had unregistered title, D had registered title. Dispute re plot of land. Plot appeared on P’s title.
• Held D’s use of land not inconsistent with the title and was sporadic at best. D wrote to P stating that the land was in commonage and thus couldn’t be said to have the necessary animus possidendi.

Question 28

Intended Future Use

Mahon v O’Reilly [2010]

Answer 28

• P sought to assert title to land which Ds disputed by stating they sent letters during the period P was in possession asserting their title to the property. P denied having ever received any letters
• Held ‘even if the letters were received by P + his predecessors, they wouldn’t have been sufficient to prevent the limitation period running against D’

Question 29

Intended Future Use

Dunne v Irish Rail [2007] IESC [2016]

Answer 29

• P claimed he acquired title to land adjoining the station house in Clondalkin by AP.
• HC relied on Durack, but claim failed as P failed to show exclusive possession for the req period.
• SC: presumption an owner intends to possess his land + only takes ‘minimal’ acts to defeat claim by D

Question 30

Intended Future Use

O’Hagan v Grogan [2012]

Answer 30

• Chief State Solicitor considered not to be a state authority thus after an auctioneer tactically took over a dead lady’s home for 16 years, he gained AP (broke into her house + lived there).

Question 31

Intended Future Use

What did the LRC recommend?

Answer 31

LRC (2005) recommended the enactment of a statutory provision defining that AP is possession inconsistent with the title of the true owner not inconsistent with the true owner’s intention. Never came to fruition.

Question 32

Adverse Possession of Leasehold Property

What section of the act governs this?

Answer 32

S.15 SOL states the time doesn’t run against the landlord until a tenant’s lease has come to an end. For AP against a tenant, the tenant’s displaced interest is not conveyed to the squatter.

Question 33

Adverse Possession of Leasehold Property

Tichborne v Weir [1892]

Answer 33

UK position
- Held a dispossessed interest holder’s title destroyed by AP but not conveyed to the dispossessing tenant
- This is bc English courts have distinguished bw AP of leasehold and freehold property providing a parliamentary conveyance of any interest in the land is not possible in leasehold property.
- In English law, a dispossessed tenant can surrender his lease to a landlord thereby bringing the lease to an end and resulting in a right of possession for the landlord that can be enforced against an AP.
- The landlord is also entitled to compliance with the covenants of a lease and may thus forfeit the lease
for non-compliance thus terminating the lease, becoming entitled to possession + to remove a squatter

Question 34

Adverse Possession of Leasehold Property

Perry v Woodfarm Homes [1975]

Answer 34

IE Diff Position

• SC considered if the same principles would apply in Irish law: held a landlord of a dispossessed tenant could not accept a surrender form a dispossessed tenant as the tenant’s leasehold entitlements to the land were extinguished by the AP.
• Despite this, the landlord is still negatively bound by the lease (not entitled to possess) and can thus expect compliance with the covenants and forfeit the lease in the event of non-compliance

Question 35

Adverse Possession of Leasehold Property

What difficulty lies in the contrasting Irish and English positions and what did the LRC recommend?

Answer 35

Issue and LRC (2005) Recommendation
 This leaves squatters in a precarious position as they have no entitlement to see the lease and thus may not know the terms of the covenants to guarantee a sustained possession of the land.
 To fix this, LRC recommended reintroducing the parliamentary conveyance for the AP of leasehold land i.e. the squatter should become entitled to whatever leasehold estate the dispossessed tenant held
including an entitlement to be told of the covenants of the lease so he can comply with them.

Question 36

The Effect of Adverse Possession

What is the effect of AP on both freehold and leasehold land?

Answer 36

The original position was to hold the squatter received an interest in the land by means of AP and that interest was whatever the dispossessed owner was originally entitled to (parliamentary conveyance)
 But with freehold land, it now appears clear that the successful adverse possessor acquires a fee simple subject to all superior interests and subject to all 3rd party interests (as he can never qualify as a bona fide purchaser for value without notice
 As aforementioned, AP against the tenant of a leasehold land doesn’t give rise to parliam conveyance

Question 37

Asserting Title to Stop Adverse Possession

What sections govern this and what will stop the clock?

Answer 37

S.50 – 60: Acknowledgement of the landowner’s title will stop the limitation period from running provided it is singed and done in writing (NB problem question advice).
 Payment or part-payment to a landowner during a limitation period will result in the adverse possessor having to start again as such payment is seen as an acknowledgement of owner’s superior title.
 A landowner can stop the limitation period running against him by taking action against the squatter
to reassert his rights, but the action must be commenced within the limitation period (NB problem Q)

Question 38

Reform, Justifications and Human Rights Concerns

What HR concerns are attached to AP? What ECHR jurisprudence bears on this?

Answer 38

Loss of title through AP seems harsh + appears to reward the wrongful behaviour. AP is v controversial but in
JA Pye (Oxford) v UK [2007]
- ECtHR the English law on AP was compatible with the ECHR. Overruling the Chamber decision the
Grand Chamber held there was no infringement of the right to property of the owner as protected by Art 1

Question 39

Reform, Justifications and Human Rights Concerns

What three recommendations did the LRC 2005 report make?

Answer 39

(a) Proposed requiring adverse possessors make an application of registration to a court rather than a s.49 Registrar of Titles application.
(b) Legal title should not vest in the application who gets a court order shall not vest until it’s registered in the Land Registry and so until registered, it will only vest in the applicant as an equitable interest.
(c) A vesting order should only be made by the court if it is satisfied that certain criteria are met and subject, if the court thinks fit, to payment of compensation by the application to the owner

Question 40

Reform, Justifications and Human Rights Concerns

Dunne v Irish Rail [2016]

Answer 40

Laffoy J in the SC urged a review of the LRC recommendations in 2016.

Question 41

Reform, Justifications and Human Rights Concerns

What are the justifications for the doctrine?

Answer 41

(a) Protects defendants from stale claims and encourages plaintiffs not to sleep on their rights
(b) It brings abandoned land back onto the market + rewards the person who puts it to productive use