Adverse Possession

Question 1

Adverse possession, why should I care?

Answer 1

Adverse means wrong. So how can you wrongly possess something and eventually become the legitimate legal owner? This is possible by sitting out certain time limits and demonstrating your possession of property. You can therefore gain rights thorough their long use of someone else’s land whether this was innocent or deliberate. Possession of land implies actual occupation of the land and receiving some economic gain from the land e.g. rent (if relevant).

Question 2

Time limits: Statute of Limitations 1957 (SOL)

Answer 2

In the absence of fraud, mistake or disability, a right of action for the recovery of land is barred following adverse possession by another for the duration of the statutory period.

Question 3

SOL Section 11

Answer 3

Limitation of actions of contract and tort and certain other actions. 6 years.

Question 4

SOL Section 12

Answer 4

Limitations of actions to recover land.
30 land for a state authority.
60 years for foreshore by a state authority.

Question 5

SOL Section 13

Answer 5

No action to recover land can be taken at the end of a period of 12 years, unless there was established fraud, mistake, or disability.

Question 6

SOL Section 14

Answer 6

30 years if the land is state owned.

Question 7

SOL Section 18

Answer 7

Right of action not to accrue unless there is adverse possession.

Question 8

How to establish Adverse Possession (AP)

cases

Answer 8

Battelle v Pinemeadows
Dundalk UDC v Conway
Feehan v Leamy
Murphy v Murphy
Leigh v Jack 
Durack v Considine 
Cork Co Co v Lynch: 
Doyle v O’Neill:
Hamilton v ACC Loan Management
Thorpe v Frank:

Question 9

Battelle v Pinemeadows.

Answer 9

• The true land owner must not have given permission to the squatter:

Question 10

Dundalk UDC v Conway

Answer 10

• For there to be possession, the land in question must be capable of being enjoyed

Question 11

Feehan v Leamy

Answer 11

possession was not discontinued as p sought and obtained interlocutory relief against d. P did not farm livestock but instead was known to park his car at the gate and look out at the field. This was interpreted as continuing to possess the land and as such, ct held that he had not been dispossessed. This contrasts with JA Pye (Oxford) where presence in an entrance way did not amount to an intention to possess the land.

Question 12

Murphy v Murphy

Answer 12

Intention to possess (animus possidendi): for possession to be adverse it has to involve the intention by the occupier to exclude the owner from the enjoyment of the estate or interest. It was also noted that AP may occur without either party realising it.

Question 13

Feehan v Leamy: referred to Leigh v Jack

Answer 13

ct noted that d’s acts were those of a man who did not intend to be a trespasser or infringe others rights i.e. a squatter cannot dispossess a true owner unless the squatter’s use of the land is inconsistent with the true owner’s purpose for it.

Feehan followed this case. On the balance of probabilities,

Leamy found that d assessed the ongoing litigation in relation to the land as dragging on while the land lay idle and ungrazed. When asked who owned the lands, he said “a man in America”, ct interpreted this as a lack of animus possidendi i.e. an intention to preclude the true owner and all other persons from enjoyment of the estate or interest being acquired.

Therefore the test is:

(i) possession: that the owner has been dispossessed; and
(ii) adverse: that the applicant had the necessary intention to preclude the owner.

Feehan is therefore authority that to stop the time of dispossession from running, this can be done by issuing proceedings or obtaining written acknowledgement from the person in possession or obtaining payment or part payment.

Question 14

Durack v Considine

Answer 14

involved the intention to build a factory on the land. One factory built and the other was left vacant and cattle were grazed by the d in that field. P claimed not adverse as grazing cattle not contrary to intention. Ct said that the only relevant factor was the intention of the squatter. Cts pointed out that the squatter wanted land for himself and AP was upheld. This was a retreat from Jack, but was not subsequently followed in Feehan or Cork (too broad an interpretation of ‘intention’ of adverse possessor).

Question 15

Cork Co Co v Lynch:

Answer 15

principle in Jack still applies, despite the view taken in Durack. Here, p acquired land to develop in the future which adjoined a garage. D’s parked car on p’s land, erected a chain fence and tarmacked it and used it to the exclusion of all others. No AP as not contrary to specific sue for which p had intended to put the land in the future).

Question 16

Doyle v O’Neill:

Answer 16

to defeat the title of the landowner, the adverse user must be of a definitive and positive character to leave no doubt in the mind of the landowner that occupation adverse to his title was taking place.

Question 17

Hamilton v ACC Loan Management:

Answer 17

Hamilton senior died leaving his property to his family. When his wife died, she transferred the disputed lands to her son (her other son was farming the land at that time). Son had been granted a loan by ACC to assist in buying part of the farm which was part of the farmland owned by his late father. Part of the security over the land came from the mother. The other brother (farmer) did not know of this transfer until 2013 (21 years after his father died) when he saw a for sale sign for the lands when his brother was in bankruptcy, and applied to ct claiming AP. Ct looked at the 12 year continuous period to ascertain whether there was exclusive possession of the lands to establish an intention to possess the land itself; and was the period of possession interrupted by any act of his mother? On appeal, it was stated that no other individual occupied the land other than the p. Evidence of this included the fact he had his cattle on the land, and had his own herd number, applied for various grants and payments, and he was the only child with an interest in farming. It was concluded that he treated the lands as his own lands and did so for the required period of 12 years, and that he had the necessary intention to possess the lands to the exclusion of all others, and that this was not a case where his possession of the land was temporary or sporadic, but it was permanent and exclusive, and he had the necessary level of physical control over the lands.

Question 18

Thorpe v Frank:

Answer 18

repaving a forecourt was enough to obtain possession and thereby widens the grounds required to establish factual possession. Sufficient degree of control depends on the nature of the land and the degree and manner to which the land is used and enjoyed.