Adverse Possession Notes

Outline

• In the case of land, the expiry of the limitation period for the bringing of an action will extinguish the owner's title to the land.

• JA Pye Oxford v England (EctHR) –

• extinguishment of title had been found incompatible by the court of human rights

• the Grand Chamber found that social and economic conditions may afford a reasonable basis for attributing greater weight to the fact of possession rather than registration.

• The re-registration is not an act of expropriation but a codification of the previous legal position.

• The legislation was well known to the applicant companies.

• The need for compensation following a limitation period would undermine the purpose of the limitation

Parliamentary Conveyance Theory

• At one time it was thought that whatever estate had been enjoyed by the dispossessed landowner was transferred to the squatter by the Statute.

• Rankin v McMurtry – Theory accepted in Ireland. Holmes J suggested as an alternative that the squatter should merely be regarded as holding anew the same interest in the land as had been extinguished.

• Parliamentary Conveyance theory provided a tidy solution where the dispossessed owner was a lessee – the squatter would become a lessee with all the covenants intact and the dispossessed lessee was freed from those obligations

• Tichborne v Weir (CA) – parliamentary conveyance theory rejected. Squatters could not be sued upon a covenant as the dispossessed lessee's title was destroyed rather than transferred.

• Perry v Woodfarm Homes (SC)

• Parliamentary Conveyance Theory rejected, except in respect of registered land.

• A squatter who has gained adverse possession against a lessee has obtained a right of possession subject to the terms of the lease.

• This is because the lease continues to exist independently of the lessee's title to it.

Animus Possidendi

• s.18 Statute of Limitations

• No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.

• For the purposes of this section:- A) possession of any land subject to a rentcharge by a person (other than the person entitled to the rentcharge) who does not pay the rentcharge shall be deemed to be in adverse possession shall be deemed to be in adverse possession of the rentcharge, B) receipt of the conventional rent under a lease by a person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease shall be deemed to be in adverse possession of the land.

• Leigh v Jack (CA)

• If the land is incapable of being used and enjoyed there cannot be discontinuance of possession by an absence of its use and enjoyment

• A squatter must use the land in manner inconsistent with the owner's enjoyment of it – in this case the land in question was being sat on in order to be given over to public purpose at some point in the future and there was no animus possidendi.

• Convey v Regan (HC) – the land in question was a bog whose only possible use was the seasonal cutting of turf and it did not follow from the owner's absence that he had gone out of possession.

• Murphy v Murphy (SC) – In the absence of fraud, the fact that the landowner was unaware of the fact that he was the owner may not preclude his title being extinguished by adverse possession. In this case a widow presumed that land that was in fact hers had been vested in her two sons.

• Cork Corporation v Lynch (HC) – Leigh v Jack followed- where the true owner intends to put it to a specific use in the future and the defendant's occupation is not inconsistent with that use, adverse possession cannot be established.

• Seamus Durack Manufacturing v Considine (HC)

• Where no use of the land is being made by the owner and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account in determining adverse possession

• However in this case, the defendant, had erected a fence on the land and there was no evidence to suggest that the defendant intended to use the land on a temporary basis only or prevent it lying idle before the plaintiff put it to use – thus adverse possession had been established.

• Dundalk UDC v Conway (HC) – The defendant had grazed cattle on the land and allowed a caravan on it, but since the plaintiffs (the owners) had planted ornamental trees and installed a sewerage system without obstruction adverse possession had not been established.

• Buckinghamshire Co Co v Moran (CA)

• In the case of enclosed land, the putting of a lock on the gates was held to constitute an unequivocal demonstration of intention to possess.

• Despite the defendant indicating that he would give up possession if the plaintiffs wanted to build a road, there was still adverse possession – what was required was at all times over the twelve years to possess the land to the exclusion of all others, not an intention to own.

• The acts performed need not necessarily be at variance with a specific purpose envisaged by the landowner.

• Kilduff v Keenaghan (HC) – In the case of cumulative acts of adverse possession, the failure of a transferor to mention or purport to convey supposed possessory rights over land may indicate that the person did not regard himself as enjoying such rights and thus lacked the animus posidendi.

• Hickson v Boylan (HC) –...

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