#17504 - Property Law Adverse Possession - Property Law/ Land Law

ADVERSE POSSESSIONDoctrine where a person in possession of land owned by someone else may have valid title to it subject to a) Certain common law requirements b) In possession for a sufficient period of time as defined by statute of limitations (12 years) • • • Ownership is a series of rights and ownership and possession are not the same. Possession is a right that ownership covers. If you've got ownership > you can transfer a possession to someone else and still maintain ownership. If you have land and transfer it to someone else, they have physical possession now as they are physically on the land but this does NOT give them ownership. Possession and occupation are not necessarily the same thing, either. • Possession:Physical control Intent. • Title: o o o Lyall: Under older common law system, possession was a basis for title > a person who had factual possession, had the right to remain in possession and this right was against anyone else except for a person who could demonstrate better title. Better title then, was earlier title or paper title. Title is not absolute or ultimate It is relative If absolute, anytime there was a dispute you would have to produce the perfect title owner but this is not how the law works Rather, there will be several claims to title and lawyers will determine who deserves it. Lord Advocate v Lord LovatThe courts will have to consider the facts specific to the case where the concept of adverse possession arises STATUTE OF LIMITATIONS 57 S.13 2. (a) ➢ No such action shall be brought after 12 years from the date on which the right of action accrued.other than dealing w/ state bodies, the length it takes for an adverse possessor to get title to land is 12 years so paper owner has 12 years to challenge the adverse possessor. Accrual - when the adverse possessor adversely possesses the land - it has to be against the wishes of the owner - ADVERSE. THE ELEMENTS NEEDED FOR ADVERSE POSSESSION 1. Discontinuation of paper owner's possessionMust show that paper owner no longer has possession Accrual will not begin unless the land is in possession of some person whose favour the adverse possession is in. The difference between animus and discontinuance: you can discontinue someone's occupation of land without an intention. Dundalk UDC v Conway 2. Physical possession without permission of the landownerYou must prove that it is against the permission, or adverse to the wishes of the owner If there is proof of permission, it will NOT be adverse ownership and there will be no transfer of land. Bellew v BellewNo adverse possession If possessor permitted to occupy land. Battelle v PinemeadowAdverse possession must be adverse 3. Demonstration of animus possidendi > intention to possessIntention to possess CONTRARY to the interest of the owner and to the EXCLUSION of everybody else. However, you can have situations where someone is not aware that they are in adverse possession - mistaken. This, under Irish law, can be enough to override the paper owners title. Ingredients of animus posedendi. 1. Intention to physically hold or occupy the land. 2. To exclude all others 3. Positive intention to possess and NOT a negative intention to dispossess someone else Cork Corporation v LynchAnimus and adverse possession Murphy v Murphy Kenny J