Application & Claim
Adverse Possession in the Land Registry
Adverse possession applies both in relation to Land Registry title and Registry of Deeds title. The Registration of Title Act provides for both acquisitions of title to existing registered title land and applications for the first registration of unregistered title based on adverse possession. This latter provision has the advantage of facilitating the creation of a Land Registry title, albeit generally a possessory title, in respect of which no other paper title will exist.
Strictly speaking, in an application to establish a possessory title against an unregistered title, it is necessary to prove the title of the person who has been dispossessed and whose title is barred. This follows from the relativity of title. With Land Registry title, the registered owner will be presumptively entitled to ownership of the land concerned.
The rights of a person acquiring title by possession affect registered title without being registered as a burden on the folio. It is one of the important section 72 burdens. It is standard practice on the sale of registered title for the seller to declare that no such burdens, including the rights of a person acquiring title by possession, are applicable.
Adverse Possession & Registered Title
Section 49 of the Registration of Title Act provides for the procedure by which a person may prove title by long possession and apply for registration in the Land Registry. The application may be made either in respect of registered or unregistered title.
The must be in a prescribed format, supported by affidavit evidence which must set out the particular facts in detail, whereby adverse possession title has been obtained. If uncontested cases where the Land Registry is satisfied that title has been acquired, it may register that title, without reference to the court. In a contested, less clear-cut or complex case, the Land Registry may refer the matter to court.
Each case will turn on its facts. The key question is whether there is sufficient evidence of unequivocal continuous acts of possession adverse to that of the owner with the title. In some cases, the facts alleged in the Land Registry application may be too equivocal to establish possessory title. Where the Land Registry is not satisfied that the facts are sufficient to establish adverse possession, the Registrar will refuse an order. An appeal may be made to the court.
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.
S.49 Procedure
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.
Procedure
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
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.
Court Proceedings
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.
Tax Clearance Requirement
The gift tax/inheritance tax legislation requires a certificate from Revenue confirming that all tax that would arise in respect of the application has been discharged. This is a precondition of registration
Before a title to land based on possession will be registered, the applicant for registration must produce to the Land Registry a Revenue clearance certificate to the effect that they are satisfied that any liabilities to gift tax and inheritance tax which became charged on the land (not being liabilities which became so charged prior to the date on which ownership was last registered) have been or will be paid.
This ensures that any liability relating to gifts and inheritances, which have never been disclosed to the Revenue Commissioners, must be discharged immediately or, if not immediately, at least within such additional time as the Revenue Commissioners consider to be reasonable.
A self-certification option is available for small properties which come within prescribed limits of value and size and are not part of a larger property and is designed to assist vendors and purchasers of small areas of land and to facilitate the work of legal practitioners, statutory bodies and the capital acquisitions tax clearance certificate area of the Revenue Commissioners.
Title Established
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.
Lost or Reputed Deeds
In some cases, the application is made to the Land Registry to give a paper title where documentary titles are lost. In this case, it is necessary to rely on the deeds and on possession on foot of it. Secondary evidence may be given of the lost deeds. A similar principle arises where entitlement arises under a will or intestacy, where the title has not been formally vested.
In some cases, the applicant will be the person entitled under a will that has not been formally admitted to probate or has not been the subject of an assent. In this case, the person is not or may not be in adverse possession as such. The Land Registry may, in practice, accept such applications in the circumstances.
Where parties have acted in accordance with a lost deed or an unadministered will, then the application is based on such title and possession, rather than on adverse possession as such.
If a person claims to be in possession on foot of lost or reputed deeds, the application may not be allowed. The person should seek to register title on foot of the deed and not based on possession. However, Land Registry practice may enable applications in some such circumstances. Practice varies depending on the particular circumstances.
Searches will be required in the various public registers in respect of persons who might otherwise have interests. Explanations will be required in relation to entries on searches that are prospectively adverse.
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