Title by Adverse Possession
Title to property may be lost by adverse possession. See the sections on adverse possession. Where a third party is in possession of the property for the requisite period, the registered owner’s rights to recover possession becomes “statute barred”. It is too late to take proceedings and the person in possession effectively takes the title.
The Land Registry on appropriate proofs and evidence, is willing to register the successor as owner, even though there no transfer of title as such. If there is any doubt on the acquisition of title by adverse possession, it may require the matter to be referred to and adjudicated on by the court.
Apart from the acquisition of title to registered title land, a person who obtains title by adverse possession to unregistered title land may make a first application for registration to the Land Registry on the basis of possessory title.
There is provision for an application for discharge of burdens such as leases, charges and easements. For example, a lease may terminate by forfeiture and repossession by the landlord. Proof must be given that the lessee has not applied for relief from forfeiture.
Persons can acquire ownership rights to property, by “so-called” squatting. This may happen, where a person takes possession of the property for a period, generally 12 continuous years, and the holder of the title takes no legal action to recover possession.
In the case, the squatter can apply to the Land Registry to be registered as owner. The Land Registry will generally serve notices and allow the registered owner and others to contest the matter if they can.
In the case of unregistered title, it is possible to apply to the Land Registry for first registration of the title in the name of the squatter. It is necessary to prove to the Land Registry the facts and circumstances by which title is acquired. The Land Registry serve notices on third parties who are affected to give them the opportunity to contest the matter if it is possible to do so.
The Statute of Limitations applies to most kinds of legal action. It requires that the action be taken within a certain period.
In the case of land, legal action to recover possession of a property must generally be taken within twelve years. After the period, the right to recover the land is barred. The period can be longer than 12 years in some cases.
Possession to be Adverse
In order to qualify to acquire title by possession, the possession must be “adverse” to that of the true owner. Possession cannot be adverse if it is with the consent of the owner. Possession under a lease or licence would be with consent. Where a lease or tenancy ends and the former tenant remains in possession, the period usually begins to run a year after its termination. If the person acknowledges the ownership of the true owner in writing during the 12 years period.
The mere fact of being in exclusive possession of the property may not necessarily be enough to be adverse to that of the true owner. The possession must be open, clear and in defiance of the true owner’s rights. If the true owner has some long-term intent or purpose for the property and the occupation is not inconsistent with this purpose, the possession may not be adverse.
Where are the property is leased, or where the owner is under age or of unsound mind (a so-called legal disability), the period of 12 years does not commence until the lease or the legal disability, as the case may be, ends or it may be extended.
The above circumstances show that mere possession by itself may not be sufficient to acquire title. There are several reasons why twelve years’ possession may not be enough. It may be possible to obtain title insurance against these risks where land has been possessed for more than twelve years.
Land Registry Form 6 with modifications applies to the application for registration. The prescribed form is short but must be completed and supplemented by sufficient detail to prove the claim. Where the application relates to part of a folio, a map is required of the area concerned.
Certain matters are required to be sworn under the form of application. The applicant must show he is in exclusive beneficial occupation of the property or sole receipt of the rents. Various factors that negate title must be sworn to be inapplicable.
The relevant facts must be set out clearly, concisely and in chronological order. Names and addresses of persons whose titles are barred or may have an interest must be furnished. If the registered owner is deceased, details of successors must be furnished.
The interest of the holder of every potentially adverse interest must be demonstrated and shown to be barred. In some cases, the application itself may be subject to the interest of others who are dependent on it, in which case an application may be made to register those interests.
All deeds, wills and other relevant documents must be furnished. Deaths claimed to be relevant must be proved by death certificates. Other relevant circumstances must have appropriate proof. Mere assertions will not suffice. There must be proof of acts of ownership.
A certificate from the Valuation Office may be required showing occupiers of the property within previous periods. Evidence of enclosure may be furnished. Full details of all occupiers should be given.
Notices are usually required to be served on persons who the Land Registry believes to be affected by the application. The notice will give details of the applicant’s claim. A period will be given in which to contest the applicant’s claim. The Land Registry may determine the parties to be served with notice of the application. It will consider what parties may, in the circumstances, have an interest in the matter.
Notices may be required to be served on the registered owner and other persons appearing to have an interest. Where a person has left the jurisdiction for more than 20 years, notices may be dispensed with. If there is reasonable doubt on the matters asserted in the application, notices are likely to be required. Notice is commonly required to be served on persons, in the vicinity of the lands who might have an interest.
Notices to Third Parties
The Land Registry will serve notices on parties who may prospectively have an interest. This gives them notice of the application and the opportunity to object. Notice will be required to be served on parties set out in the application. Notice will also be required to be served on registered owners personal representatives and immediate next of kin if the person died intestate. Notices will be required to be served on persons in possession.
Notices may be required to be served on adjoining owners in particular if the application is by a stranger to the title. Notice may be required to be affixed to the property itself
The Land Registry may direct notices to be published in the newspaper or other publicity steps. Steps may be required to trace the identity and whereabouts of persons. If it is claimed a person has left to go abroad, attempts may be required to trace them abroad by publication in media abroad.
The notice generally requires an objector to reply within 21 days. This may be extended where appropriate.
Objections may be made in writing by interested parties. They must be based on facts and law which are contrary to the application made. If the objection shows a prima facie (apparent/presumptive) valid ground of objection, the Land Registry may require it to be set out on affidavit. Issues may arise about sharing the data with the other party.
Where they do not disclose any valid legal grounds of objection, assuming the facts asserted are true, the Registrar may reject them and proceed to register. The objectors are not necessarily normally given copies of the application. An objection might not disclose a valid legal basis. In such cases, the Land Registry may determine the application in favour of the applicant, notwithstanding the same. If there are no valid grounds of objection, the Land Registry will generally notify the applicant.
If the Registry is satisfied that there are grounds that may defeat the application, which the applicant does not answer on being given the opportunity so to do, then the Registrar may reject the application. Where there is a conflict of evidence on key matters, the Registrar may refuse to register or refer the matter to court. The applicant has a right of appeal to the High Court.
There is an appeal to the court from a decision of the Land Registry. If the Land Registry is not satisfied that the matter is sufficiently clear, it may refuse the application, and the applicant may appeal to the court.
The Land Registry may also refer points of law or fact arising in the course of registration to court for determination.
If court proceedings arise while the Land Registry application is being considered, the Land Registry will stay/suspend the application pending the outcome of the same.
If the application is successful, it establishes a registered title which comprises proof of title. The Land Registry will usually register such titles with the “possessory” class of title. This will mean that the State guarantee is not applicable to the same extent as registration with an absolute title.
The title remains vulnerable to possibilities that may arise, where for example, a postponed limitation period, in fact, applies, which is not discovered through the Land Registry application process. See the separate chapter in relation to such issues.
Estates of Deceased Persons
See the separate chapter on adverse possession in the context of the death of the registered owner and the administration of estates. Many claims of adverse possession are made in circumstances where the registered owner is long deceased and his or her children, grandchildren or other descendants have continued in occupation, sometimes for generations.
It may be claimed that a predecessor acquired title by adverse possession and that the current applicants are beneficiaries under a will or the persons entitled on intestacy. A detailed basis of the claim must be shown.
Legislation and court decisions have facilitated such applications. Principles that formerly would have inhibited such claims have been reformed. The personal representative is a quasi-trustee, subject to fiduciary duties, which would prevent the operation of the older Statute of Limitations under general principles.
The Statute of Limitations 1957 modified the principle that a personal representative was a trustee for the purpose of the legislation. The Supreme Court later held that a personal representative is not a trustee for beneficiaries in the context of registered land so that he can bar the rights of beneficiaries by possession even under the older legislation.
A separate but similar principle is that of baileeship. 19th-century case law established that when several persons went into occupation, adversely to the title of another, they acquired title as tenants in common. This being so, their possession was not necessarily inconsistent with absent tenants in common, who acquired rights under the deceased’s estate.The Succession Act provides that in the case of deaths after 1st January 1967, shares in the deceased’s in an estate are acquired jointly, and not as tenants in common.
Where a person holds land as joint tenants or tenants in common, a person in possession as a tenant in common is not deemed to be in possession for the benefit of those out of possession. Accordingly, a co-owner in adverse possession may acquire a title against his fellow owners.
References and Sources
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
The Limitation of Actions, 2nd ed Brady and Kerr 1994
Limitation of Actions Canny 2016
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Land Law Nutshell Cannon 2020
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
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