Adverse Possession Flashcards
What is adverse possession?
Adverse possession is the informal and controversial process by which rights over land may be acquired by one party and extinguished in another part through the mechanism of possession in compliance with the Statute of Limitations 1957. It allows an individual to gain de facto rights through long use of someone’s land if he either deliberately took possession of the land or innocently encroached upon the land of anothe.
What are the temporal limits to adverse possession?
Statute of Limitations Act 1957
s13
1)a) State owned property - 30 years
1)b) Foreshore - 60 years
2) Private Property - 12 years
O’Hagan (Personal Representative of Alice Dolan(deceased)) v Grogan
- narrow view of what is considered a state authority
s18
Squatters may be successive and add their time together
What are the essential elements of Adverse Possession?
s 14 of the Statute of Limitations
1) Possession
2) Adverse
3) Dispossession or discontinuance of the title owner’s use and enjoyment
How is the requirement of possession fulfilled?
s.18 SOL
- Possession is a matter of fact and therefore a matter of evidence
Power v McFarlane
- There must be actual, physical, continuous use of the land.
- The exercise of clear non consensual control
How is the requirement of possession fulfilled?
s.18 SOL
- Possession is a matter of fact and therefore a matter of evidence
Power v McFarlane
- There must be actual, physical, continuous use of the land.
- The exercise of clear non consensual control
How is the requirement of adverse fulfilled?
Buckinghamshire County Council v Moran
- Possession is not adverse if enjoyed under a lawful title
Battelle v Pine Meadows Ltd
- statement of owners saying they did not know if the land was theirs and did not care if it was is not akin to permission
- belief of the squatter that they themselves are the owner does not negate possession being adverse as it still results in an intention to exclude
How is the requirement of dispossession or discontinuance of the documentary owner fulfilled?
Often viewed in light of intention known as intention to possess or more frequently animus possidendi
Dunne v Iarnrod Eireann
- Allowing access for repairs to be carried out contradicts an intention to exclude the world, clock started again with each entry
Dundalk UDC v Conway
- if land is incapable of being used or enjoyed then the documentary owner cannot be discontinued of that use and enjoyment
What is animus possidendi?
The intent to possess.
Powell v McFarlane
- there must be not only factual possession but the intention to possess
- intention to possess involves the intention to exclude the world at large including the documentary owner in ones own name and on ones own behalf as far as is reasonably possible and as the processes of the law will allow
Murphy v Murphy
- still exists if one innocently believes they are the owner as they still intend to exclude the true owner and all other from enjoyment of the estate or interest to be acquired
When was the idea of future use first introduced and how was it dealt with by English courts?
First introduced in:
Leigh and Jack
- court held that despite the would be adverse possessor having fenced of the land and having stored large amounts of material on it so that it was impassable by foot there was no animus possidendi
- this was because these actions did not interfere with and were not inconsistent with the owners future use
- there could be no adverse possession if the documentary owner had no present use for the land but had a future use for it
Idea of inconsistency with future use was overturned in:
Buckinghamshire County Council v Moran (court of appeal)
Judgement upheld by House of Lord is JA PYE (Oxford) Ltd v Graham, intention to possess/ animus possidendi of the adverse possessor is key not the inchoate future use of the documentary owner
How have Irish courts dealt with the concept of future use?
Cork Corporation v Lynch
- Lynch fenced in and tarmacked land owned by the County Council
- No animus possidendi because the land had been purchased to be used as a roadway, so it being tarmacked did not interfere with this future use
- upheld Leigh v Jack where the land had been purchased for a specific purpose
Durack Manufacturing v Considine
- Held that animus possidendi had to be viewed in light of the acts done.
- If they are sufficient to show the intention to exclude and possess then adverse possession could exist without inconsistency with future use
Feehan v Leamy
- further developed line of argument used in Durack that if the would be adverse possesor knew that the documentary owner had no present use but did have a future use for the land it might lead to an inference that the squatter only intended to possess the land temporarily not absolutely
- if the adverse possessor knew of the future use and made sure not to interfere with it there is no animus possidendi
Seems that the Irish courts view the issue of future use as a factor of analysis as to whether the owner of the land has been fully disposed but further clarity is needed
How may the limitation period running be postponed or altered?
Mistake s. 72 SOL
- in title/ law not of facts or ignorance (Murphy v Murphy)
- means the limitation period does not start until the plaintiff discovers the mistake or could have with reasonable diligence discovered it
Disability s. 48 SOL
- limitation period is postponed while the documentary owner is an infant, of unsound mind, or a convict
Fraud s 71 SOL
- if the right of action is concealed the limitation period does not start until the documentary owner knows or ought to have known had they made reasonable inquiries
Part Payment s. 61 - 70 SOL
- If a sum is paid indicating a landlord or mortgager relationship the limitation period re starts
Acknowledgement s 50 - 60 1957 Act
- a written and signed acknowledgement of the title owner’s rights to the title owner from the adverse possessor restarts the limitation period
How should adverse possession law in Ireland be reformed according to the LRC?
- Currently adverse possessors receive a defence to an action to recover possession of land under SOL 1957, and under article 24 of the SOL the documentary owner’s title is extinguished. The effect this has on ownership is uncertain and the ap has only a defense not a right, although this may be used to seek registration under the Registration of Title Act 1964. Both the LRC and Wylie suggest that a 21st century parliamentary conveyance be introduced so that the adverse possessor may be given full title by statute. Alternatively the court may be allowed to make vesting orders (s. 129) under which they could also require a payment to the previous documentary owner to account for their losses
- Amend s.18 to make clear as it did in the case of Durack Manufacturing that
adverse possession should be based upon the physical control and intention to possess of the claimant in a way inconsistent with the “paper” owner’s title, and not on the intention of the paper owner as the English Courts have done in JA PYE (Oxford) Ltd v Graham as currently there is case law which leads to doubts in this area (s. 126) - Limit future situations in which adverse possession will succeed in acquiring title, in order to ensure compliance with the European convention.
i) owner has abandoned the land or is unlikely to be found.
(ii) cases where a genuine mistake has been made over the boundary between properties and encroachment by one neighbour on another’s land has occurred.
(iii) Often one member of the family has been left to run the farm, while the others have left.
Frequently no grant of probate or letters of
administration are taken out and the one member of the family who has stayed on the farm (often looking after the deceased and the deceased’s spouse in their final years) will continue farming it regardless of such
formalities. The issue of ownership will only arise when some transaction is sought to be carried out, eg, borrowing on the security of the farm or selling off part of the land.
(iv) residual category where the court may consider that it is appropriate to apply the doctrine.
What is the view of the European Court of Human Rights on Adverse Possession?
JA PYE (Oxford) Ltd v United Kingdom
- given similarities of law in both countries Ireland joined as a third party
- put forth by the plaintiff that adverse possession breached their article 1 ECHR right to peaceful enjoyment of property.
- the taking away of property from a person by the state through a statute without compensation is a primary wrong under the ECHR
- Under the 1952 Paris Protocol Article 1 provides a protection of property from derivation except in set circumstances, this includes a broad public policy element
- Article 1 does not impair the right of the state to enforce such laws as it deems necessary to control the use of property in accordance with general interests
- Wylie states the view was taken that the doctrine was a proportionate control of the use of land rather than a deprivation of possession
