#16444 - Adverse Possession - Property law

INTRO

Exam focus:

March 2013: Problem Q: Dan cultivated a field behind his house. Planted veg and hedge. Ned was owner in Jamaica. Told dan hed build on it in future. Was prepped to grant him short lease. Dan died then without giving lease and all property went to his son. Ned then died. Jim the son of Dan wants to know can he retain field.

March 14: Janet growing vegetables in field. Planted. Shed put up. John who was owner lived in spain. John was going to grant her a lease. But then he died. And then she died. Sheila, janets daughter wants to know can she be registered as owner of the field.

April 14: classic pq.

March 15: Recent case law in relation to adverse possession has suggested a lesser role for the intentions

and future plans of the legal owner and has placed greater emphasis on the animus possidendi

of the squatter. ·

Discuss this statement,supporting your answer with relevant legal authority.

Sept 15: The law on adverse possession is in urgent need of reform. Critically discuss this statement

giving reasons for your answer.

Spring 18: Kildare county council and jones grazing land. – Mention dispossession, AP, factual possession, absence of defence. Limitation period- 12 years as local authorities are not included in the definition of “ state authority” in the 1957 act.

AP = an exception to the rule “nemo dat quod non habet” - no one may give what he

does not have

Through Adverse Possession, title to land may be acquired against the will of the true

owner through the process of limitation

It underlines the importance of possession in property law

• A person entering into possession of land without the consent of the owner is a

trespasser and is liable to be evicted

• Against others the adverse possessor has a possessory title

• By holding the land to the exclusion of the true owner for a sufficient period, the right

of action of the “paper owner” is lost

• Acquiring title by limitation generally arises in 3 ways:-

1. Where a rightful owner has lost title deeds or the formal conveyance to him

was defective

2. Innocent encroachment upon land

3. Deliberate taking of land belonging to another

De londras notes: In vernacular terms « ap» can be described as “ squatting” and is a means of acquiring rights over land by means of possession with the intention to exclude all others including the landowner for a required period of time.

A trespasser may succeed in extinguishing the title of the owner and acquiring title by adverse possession. Governed by the Statute of Limitations 1957, which provides that where someone “squats” on another’s land for a required period of time, the landowner’s title (ie legal entitlement to the property) is extinguished.

• S 14 of the Statute of Limitations 1957 states that, where a person bringing an action to recover land, or some person through whom he claims has been in possession thereof and while entitled thereto has been dispossessed or dis continued in possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

• Limitation periods (One of the factors needed for adverse possession)

The legislative ground for AP is s. 13 Statute of Limitations 1957, which prevents the title owner of land from reassert his title after a certain duration of possession.

• State authorities: 30 years (60 for foreshore or 40 for land which ceased to be foreshore while remaining the property of the State). S. 2 defines State authority as a Minister of State, the Commissioners of Public Works, the Irish Land Commission, the Revenue Commissioners and the Attorney-General.

• Most private property owners: 12 years (6 years for rent and charges in arrears: this only has a bearing on the charges, not the title). Due to the definition of State authority in s. 2, this includes local government.

• The limitation period can be postponed in exceptional cases. S. 72 of the statute: if title is asserted to relieve the consequences of a mistake, the period runs from the time that the mistake was discovered or would have been had there been due diligence.

• Murphy v Murphy: farmland had been left on trust to T’s widow and their two sons for 10 years, after which each would get a certain part. D, one of the sons, managed the land for the 10 years. A few years later P, D’s brother, left the land and sold it to him. D continued to farm their mother’s portion, pay its rates and make improvements after the trust expired. When she died, she left it all to P. SC: the fact that she was not aware of her entitlements to her portion did not save her title from D’s AP. The law will not save somebody from her own ignorance as to her entitlements (s. 72 applies where she finds the mistake and seeks relief).

• De londras notes: The decision in Murphy clearly built on earlier precedent supporting the proposition that a mistake by either the landowner or the AP as to the nature of their rights over the property will be no barrier to a successful claim of AP.

• Kenny (approving Wylie): “AP may take place without either party being aware of it” (this contention is supported by s. 14).

• Limitation period will begin to run once the landowner has either had his enjoyment of the land discontinued or has been dispossessed.

• Imperative that the candidates would be able to identify the point at which the time begins to run in favour of the alleged adverse possessor by reference to the requirements of adverse possession outlined below

• S. 71: where AP is concealed fraudulently from the landowner or where the AP results from the possessor’s or his agent’s fraud, the limitation period will not begin until fraud is noticed.

A recent decision of the HC casts some doubt on the effect of the claim of AP of the individual in question not knowing that he was squatting.

• Kelleher v Botany Weaving Mills: Clark J held that a person can never be in AP of a piece of land if he believes himself to be its true owner.

• Woods, de Londras: inconsistent with Murphy, which treated mistakes by the owner and the squatter as inconsequential. Kelleher’s failure to properly consider this renders it bad law.

• Murphy position ought to be preferred over that suggested in Kelleher.

• The landowner’s disability will postpone the running of the limitation period. As he is not in a position to enforce his property rights, AP is not justified.

• This includes infancy (under 18), people of unsound mind, and convicts subject to the Forfeiture Act 1870 in relation to whom no administrator has been appointed.

• S. 49: a six-year limitation period runs from the end of the landowner’s disability (or his death, if it comes first), regardless of whether the 12-month period has accrued.

• Requirements of AP: NB FOR PROBLEM QS TO MENTION THESE 4

In order for an action to accrue in favour of the landowner, the “squatter” must:-

1. Be in possession of the land;

2. Adverse to the landowner; [ Battelle v Pinemeadow] and

3. In a manner that discontinues the landowner’s use and

enjoyment of the land or dispossesses the landowner

• Must be Capable of being Enjoyed

• Dundalk UDC v Conway – small plot of wasteland at a steep gradient beside a river was incapable of being enjoyed by the owner, even though it had value.

Discontinuance

• S. 14 of the Statute of limitations 1957 Act: “dispossession or discontinuance”. This implies that either alone may be sufficient for the limitation period to begin.

• Dispossession can be said to consist of the possession of the land by an adverse possessor who has the requisite animus possidendi. Defined by slade J in Powell v McFarlane: “ Animus possidendi involves the intention, in one’s own name and on one’s own behalf to exclude the world at large, including the owner with the paper title if he not be himself the possessor so far as it is reasonable practicable”.

• Concurrent possession by the owner and the squatter prevents time from running in the latter’s favour (Buckinghamshire CC v Moran).

• De Londras: it is clear that discontinuance without dispossession (which has been equated with abandonment) will not be enough for time to run for the possessor.

• As the ownership of land can entail declining to use it, the courts tend to regard the most minimal of activities to refute a suggestion of discontinuance.

• Mulhern v Brady: no abandonment where a landowner had visited the site, placed a planning permission notice in the local newspaper, engaged an auctioneer to erect a for-sale sign and told P that he was trespassing when he saw his cattle on it.

• Statements and actions pf the adverse possessor, such as erecting gates or fences.

• Woods: owner’s actions tend to be viewed holistically, as one of a number of factors relevant to the sufficiency of the squatter’s acts of possession.

• Feehan v Leamy: the owner of the property only has to exercise the rights of ownership which he wished to in order to establish that he had not been dispossessed. Here, this involved merely inspecting the site from the gateway (owns land halfway across the road).

• Woods, de Londras: this case turned on the absence of animus possidendi. It is not the case that merely looking over the hedge stops time running, but that time never runs in the first place where the possessor does not achieve exclusive possession (no change in the way the owner possessed the land).

Factual possession

• Use and enjoyment of the land

• There must be actual physical and continuous possession of the land. Merely playing on land or keeping horses, walking or shooting do not amount to acts of possession.

• The factual use of the land is insufficient for adverse possession, the cases...