Topic 5 - Adverse Possession

Question 1

Murphy v Murphy; Factual Possession

Answer 1

Case where mother did not know she owned the property.
Found that adverse possession can take place even where the owner is not aware of their rights.
*in a family context such as here, permission might be presumed

Question 2

Mulhern v Grady: Factual Possession

Answer 2

Owner had plans to build house on farm, visited 4/5 times a year.
Occupant had use land for farming and made repairs.
Found that the occupant hadn’t made an open assertion of title; when they had been asked to remove cattle from the land, they had done so.

Question 3

Treacy Enterprises v Drury: Factual Possession

Answer 3

Insufficiently strong acts will not constitute adverse possession. Had only cleared waste from the plot and used it sporadically to test machinery.

Question 4

Dundalk UDC v Conway: Factual possession

Answer 4

Concerned a plot of wasteland that was owned by the council, only use of the land was to access a bridge for repairs.
Courts found that adverse possession could not take place here.

Question 5

Dunne v Iarnróid Eireann: Factual possession

Answer 5

Applicant had built a stables and raised animals on the plot of land.

1. In working out sufficient adverse possession, must look at type of land and what the owner would use it for.
2. Minimal possession is enough to defeat a claim of adverse possession: here this was constituted by repair of the lands.

Question 6

Byrne v Dublin County Council [2018] (HC): Factual Possession

Answer 6

Case involving garden adjoined by multiple houses.
Court looked at whether its use was consistent with it being the applicant’s garden; looked at character of the land in question to determine what would constitute sufficient acts of possession.

Question 7

Powell v McFarlane: Intention to possess

Answer 7

Must be intending to exclude everyone else in physical terms from the property

Question 8

Leigh v Jack [1879] (UK); Inconsistent Use Doctrine

Answer 8

Old English case.
In order to be adverse possession, must be inconsistent with owner’s enjoyment of land for purposes for which intends to use it

Question 9

Durack Manufacturing v Considine [1987]; Inconsistent Use Doctrine

Answer 9

Where no use being made of land, and possessor knows there is no use being made of it (possibly being held for a future purpose) the court shall take this account when assessing the intent.
-Incorporates Jack v Leigh into Irish law, but as a factor rather than a rule.

Question 10

Cork Corporation v Lynch [1995]: Inconsistent Use Doctrine

Answer 10

Piece of land in Cork City which Corp hires with the intent of road widening purposes, occupied in excess of 12 years by garage owner.
Use of the garage owner was not inconsistent and it followed that adverse possession was not established
-Identified future plans of the owner and the use by the possessor as the two factors here.

Question 11

Feehan v Leamy [2000] HC; Inconsistent Use Doctrine

Answer 11

Involved a squatter who had been farming and making improvements on a piece of land.

1. In conversation with the police, squatter acknowledged that the land was owned by someone in America: did not have the intent to possess the land.
2. Contractor of the owner would look over the fence into the land: found this constituted an act of possession and denied exclusive possession.

Question 12

Dunne v Iarnrod Eireann [2007]; inconsistent use doctrine

Answer 12

The court might be able to infer where possessor knows intent of the owner, and does something not inconsistent with land, the possession was only temporary.
Matter of fact rather than a strict rule.

Question 13

Hamilton v ACC Loan Management [2016] HC: Intention to possess.

Answer 13

Possessor had been farming the land making applications for grants.
Was there intent of exclusion of the owner from the land and a manifestation of that intent?
Found there was.

Question 14

Ulster investment Bank v Rockrohan Estate Ltd [2015] SC

Answer 14

Case where possessor of house had defaulted on their mortgage and tried to make a claim of adverse possession on the house, bank had received an order of sale but not an order of repossession.
SC found that this was in theory possible, however in the case at the hand the applicant was in consensual possession at all times and as such adverse possession could not have taken place.

Question 15

Dooley v Flaherty [2014] HC; Acknowledgement of owner’s title

Answer 15

Found that the mere payment of rent is acknowledgment of title. This failed in the case at hand as the payment had been well over 12 years ago.

Question 16

Dooley v Flaherty [2014] HC;

Answer 16

The owner argued that given the state of the property (derelict) it was incapable of use & enjoyment.
Hogan J rejected this: would require the courts to inquire into the subjective tastes and feelings of landowners.

Question 17

Mount Carmel Investments Ltd v Peter Thurlow Ltd

Answer 17

Can have successive squatting – provided no gap, S2 can claim S1’s years of AP.

Question 18

Statute of Limitations Act 1957 S14(1): Private parties

Answer 18

12 years for AP:
Rights of action will be said to accrue once the requirements or adverse possession are present
Alleged adverse possessor:
1. must be in possession of the land,
2. possession must be adverse (not permissive)
3. must be discontinuance of the landowner’s use or dispossession of the landowner.

Question 19

Statute of Limitations 1957 S13: Public parties

Answer 19

30 years for AP

Question 20

Statute of Limitations S49; Disability

Answer 20

If someone has a disability, it would be unfair to allow adverse possession where they were not able to defend their rights.

Question 21

Statute of Limitations S71; Fraud

Answer 21

Fraud stops the clock running on adverse possession. Clock only starts running when you knew or ought to have known about fraud.