Deceaseds’ Estates
Informal Succession on Death
It often happens that properties pass from generation to generation, without a grant of probate, letters of administration or updating of title documents/the Land Registry. A parent or grandparent may have died with or without a will. One or more children may have remained on in the property, while others left, perhaps to move abroad. This is often the case with farms, where a single successor is usually necessary.
Applications for registration commonly arise after the death of the last registered owner, where some members of the deceased owner’s family remain in possession of the property, typically a farm or dwelling house, while others do not. The survivors who remain in possession may ultimately acquire title, without any formal administration and irrespective of entitlement under a will or on intestacy.
As with limitations generally, successive squatters can make up the limitation period between them. This can and often applies in the case of a deceased owner’s estate. In some such cases, the title may have been barred in the past. In these cases, it is necessary to look at the law applicable and the particular circumstances which applied.
The question arises as to whether the person or persons who have remained in possession and occupation may claim the property after the 12 year limitation period has passed. An application may be made to the Land Registry under section 49 of the Registration of Title Act in such circumstances. The considerations mentioned separately whereby time limits may be postponed (e.g. a person is under 18 years lacks mental capacity) apply.
The general principle is that a person may not be in adverse possession as against his or her spouse. Generally, a spouse who is in possession who is not on title is present by right. Other circumstances may apply by which possession could be adverse. This will depend on the particular case.
Personal Representatives
Freehold unregistered title property vested directly in the heir at law of the deceased owner, until law reforms in the 1950s and 1960s. Registered title passed in a different manner under Registration of Title legislation, so that the estate vested in personal representatives on death, for distribution to the persons entitled.
An executor or administrator has a duty to administer the estate which requires that it be distributed in accordance with the will or rules of intestacy. Once that office is assumed, the duties apply. The executor or administrator is personally liable for failure to fulfil the duties of the office.
Where land is in the possession of one beneficiary to the exclusion of others or in the possession of a third party, the executor or administrator has twelve years from the date of death to take legal action to recover the land. If he or she fails to do so, the title may become statute-barred.
The Statute of Limitations provided that as and from 1st January 1959, the rights of beneficiaries of the estate of the deceased were barred after twelve years, against persons in possession of real property, adverse to their interest in it. This period was reduced to six years as and from 1st January 1967. In the cases of persons under a disability, there is an additional three years after the date of that person’s death or his recovery from the disability.
However, the personal representative retains the right to recover possession within 12 years. After some cases in which the courts struggled with this apparent anomaly, the position is now well established, that at least 12 years’ possession after the death of the deceased owner, is in effect required to make a claim for adverse possession.
Facilitative Provisions
A 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 possession of one tenant in common is not adverse to the possession of another at common law.
Under the Statute of Limitations 1957, a co-owner in possession of the entirety or more than his or her undivided share of such land is deemed not to have been in possession on behalf of co-owners who are not in possession. Accordingly, a joint tenant or a tenant in common may acquire a title against his fellow owners.
The Succession Act provides that in the case of deaths after 1st January 1967, shares in the deceased’s estate are acquired jointly, and not as tenants in common. This means that on death, the interest passes to the survivor(s). This reduces the number of persons who may have an interest and makes the acquisition of title by possession easier to achieve and to prove.
The Statute of Limitations in 1957 provides that persons who are entitled to land as joint tenants may acquire title by possession from each other. Formerly each was identified with the other so that adverse possession was not possible. It depends however on the circumstances whether there is or is not adverse possession.
On application of a successor to a deceased owner of registered land, the court may dispense with the requirement of raising representation or giving notice to the personal representatives, if it is satisfied that at least six years have elapsed since the deceased owner’s death and the personal representatives are dead or out of the jurisdiction.
S49 Application
Where an application is made under section 49 (see separate chapter), the Land Registry will require notices to be served on all parties whose interests are affected. If they are abroad, steps may be required to identify and trace them. The interests of each person who would had a share or would have had a share must be set out and be shown to be barred.
Persons with an interest may make an objection. The Land Registry considers whether there is a valid legal basis to the objection. Where there is a direct conflict on key evidence, the Land Registry is likely to refuse registration in which event, the applicant may appeal to the court against the decision.
Generally, the fact that one of the family members has returned for social visits and holidays from time to time or a certain intent to return is insufficient in the case of an application by a sibling in possession.
Lost and Unproven Wills
In order to claim possession under the section 49 procedure, an adverse claim is required. This is adverse relative to the position under the legal owner’s wills or intestacy. Where the claim is based on the wills and probate which are identified but lost, or are reputed the Land Registry may make accept an application based on possessory title.
However, the primary basis in such a case would be the paper title and the Land Registry may require steps to be taken to show title by producing evidence of the deeds grant of probate et cetera as may be required.
References and Sources
Primary Texts
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
Shorter Guides
Land Law Nutshell Cannon 2020
UK Textbooks
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
Land law Cooke 2015