Adverse Possession

Published: 2021-07-05 03:00:05
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Adverse Possession Introduction: The area of law in question here is adverse possession of freehold land. Wylie defines adverse possession as “possession of land which is inconsistent with the title of the true owner. The law on adverse possession in Ireland, and indeed throughout much of the common law world, is extremely conscientious and ambiguous. Therefore, it is impossible to say with certainty how the courts will decide this issue.
The major difficulty encountered in this area stems from the moral stance one takes with regard to the landowner versus adverse possessor argument, and in deciding the correct balance to be struck between competing interests. Issue: The question that arises in the problem at hand is whether Nora adversely possessed 55 Fitzwilliam Square. Law: Buckley accurately and succinctly summarises the law of adverse possession as “one which traditionally carves wary walking for many practitioners; with apparently conflicting authorities not easily reconciled”.
This statement becomes more apparent after analysing the case-law. The doctrine of adverse possession allows a trespasser to extinguish the rights of the true owner through the passage of time. S. 12 of the Statute of Limitations Act 1957 states that an action to recover land which has been adversely dispossessed must be brought by the owner within the requisite limitation period. As outlined by s. 24, if no action is taken within the limitation period the title of the true owner is extinguished. S. 3(2) sets the limitation period at 12 years and it begins to run where there has been a dispossession of the true owner of a discontinuance of possession by him and adverse possession by some other person has occurred. There are certain circumstances however, which will stop the period of limitation running. Only two of these apply to the case at hand. The first is where the owner commences legal proceedings. For example, in Mount Carmel Investments v Thulow, it was held that merely sending a solicitor’s letter would not stop the time running. The issue of successive squatters is fundamental to the case at hand.
As Coughlan notes “There is no requirement that the adverse possession of the land be enjoyed by the same squatter throughout the limitation period”. In other words, the twelve-year limitation period can be made up by a series of successive squatters. This idea was enunciated in Mount Carmel Investments where it was held that the possession time of the 1st and 2nd squatters could be added together. However, previous periods of adverse possession cannot be taken into account where a break or interval occurs in the occupation of the land by a squatter or between his occupation and that of another squatter.
There are four criteria that must be satisfied when proving adverse possession. Firstly, the squatter must be in possession without the consent of the owner. If the squatter is in possession under a lease or a licence, his possession is not adverse. However, it can become adverse on the expiry of the term in the lease or if the licence terminates, (e. g. Bellew v Bellew). Secondly, in order for there to have been adverse possession the true owner must have discontinued possession or have been dispossessed. In the case of Brown v Fahy, it was held that walking on land was a sufficient act of possession on behalf of the owner.
A similar approach was adopted in the controversial case of Feehan v Leamy where it was held by Finnegan J. that the plaintiff in peering over the hedge from the road onto the land “…was exercising all the rights of ownership which he wished to exercise”. McInearney is very critical of this judgment, describing it as “a most unwelcome development”. He believes it favours the paper owner to an inordinate degree. He prefers the approach adopted in Mulhern v Brady. In this case, Carroll J. held that the paper owner exercised sufficient acts of possession to warrant a defeat of the adverse possession claim.
He visited the property several times a year; asked the tenant of the adverse possessor to remove his cattle; advertised for planning permission on numerous occasions and erected a ‘For Sale’ sign on the property. Thirdly, in order for there to have been adverse possession, the possessor’s acts of possession must be sufficient, i. e. it must be clear to an onlooker that squatting is taking place. For instance, in Doyle v O’Neill, the use of a plot of derelict land for dumping and temporary storage was held to be an insufficient act of possession. O’Hanlon J. mphasised that these acts must be “…of a definite and positive character and such as could leave no doubt in the mind of a landowner alert to his rights that occupation adverse to his title was taking place”. In Techbild v Chamberlain, the defendant’s children had played on the land and they had also kept ponies there. However, the Court of Appeal held that “these trivial acts of trespass did not amount to adverse possession”. Similarly, in Hickson v Boylan, it was held by Carroll J. that the plaintiff’s actions in walking, shooting and raising pheasants on certain bog land did not constitute unequivocal acts of possession.
Additionally, in Dundalk Urban District Council v Conway, it was held that grazing land was not a sufficient act of possession. Thus, McInearney observes that cases which focus on the acts of the paper owner tend to rely on a relatively low bar for retention of ownership, whilst those dealing with the concept from the viewpoint of the adverse possessor tend to require the exercise of a high levels of possession, both thereby implicitly favouring the paper owner over the purported adverse possessor.
The squatter must therefore take unequivocal steps to demonstrate that he has dispossessed the owner. For example, in Powell v McFarlane, erecting a fence was deemed to be a sufficient act of possession; while in Buckinghamshire County Council, putting a lock on a gate was held to be sufficient. Finally, the squatter must have animus possedendi; in other words, the squatter must have an intention to possess and to exclude the true owner from the and.
In Feehan v Leamy gardai were called to the land in question and the squatter informed them that the land belonged to a man in America, thereby illustrating an absence of the requisite intention to exclude the true owner. Similarly, in Doyle v O’Neill, the court held that the defendant lacked the requisite animus possedendi as he had previously asked for permission from the paper owner to store material on the land. When analysing whether adverse possession has occurred, the intention of the paper owner may also be relevant. The seminal case on this point is Leigh v Jack.

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