Special Cases
Postponement of the Standard Period
The standard (usually 12 years) time limit may be postponed by reason of certain circumstances (which are not necessarily readily apparent). The general rule is that the time runs from when the squatter enters possession, adverse to the title of the true owner. This period may commence, or indeed run in its entirety, without the true legal owner ever being aware and he may lose the title by adverse possession of another, without his knowledge.
The possibilities for postponement of the standard period illustrate that 12 years’ adverse possession may not suffice to acquire possessory title. The dispossessed person may have been a tenant. He may a life tenant. He may be underage or lack mental incapacity. Acknowledgements may have been made in the past. In such circumstances, a possessory title may be sold with insurance to cover the above risks.
This position reflects the general principle that the person in possession bars the rights of the person entitled to immediate possession. If that person has a short right or interest, he is vulnerable to later enforcement by the holder of future interest for the period from which that latter’s right to possession commences.
Postponed Rights
The right to recover possession accrues when the relevant estate “falls” in, i.e. when the right to it arises. In the case of a future interest, that right will not accrue until the interest commences; “falls into possession”. If the possession commences prior to the future interest accruing and falling into possession, the period is the later of 12 years and the date on which the right accrued to the owner of the prior estate or six years from the date on which the right accrued to the person entitled to the future estate.
Where a person has an interest in possession and a separate future interest in the same property, he may not generally bring an action in respect of his future interest, if his interest in possession becomes statute barred. There is an exception if the person entitled to the intermediate estate recovers possession in the meantime.
In the case of a fee tail, the right of the grantor or person entitled on termination [on heirs of the body dying out] accrued in the normal way on the failure of heirs. Under the 2009 land reforms, the fee simple interest in effect vests in the holder of the fee tail interest provided that any period of protectorship has terminated. Accordingly, unless heirs have already died out before the Act the fee tail holder’s interest is increased to a fee simple.
The right of entry for breach of condition in a fee simple subject to a condition accrues when the condition is broken. Accordingly, 12 years later, the interest may be converted into a fee simple freed of the condition, by the operation of the Statute of Limitations.
Future Interests
Certain estates (rights) to land may not take effect until a future date. A person may own land for life, while another’s ownership (the reversion/future interest) may commence on the former’s death. In such cases, the holder of the future rights has six years from the date his rights to possession kicks in, in which to take action or the original standard period whichever is longer.
Post Lease
Where a tenant remains in possession after his lease has terminated, without paying rent, the Statute of Limitations period make commence to run in his favour. In the case of a lease, it will be clear when the term has terminated. In the case of tenancies that are not in writing or which run from period to period, such as year to year or less, the time to commence legal action commences at the end of the tenancy or date of last rent receipt, if later. A tenancy at will is one with no fixed period. The Statute of Limitation period ends one year after it begins unless it is terminated earlier.
A similar principle applies to leases. The landlord has 12 years from the termination of a lease in which to take action against persons who squatted against the tenant. This principle applies to short-term leases and also to long leases at nominal ground rent. The legal owner may, for example, hold under a 99-year lease. The person in possession may bar the rights of the 99-year lessee to take legal action after 12 years. However, he remains vulnerable at the end of the 99th year period to the claim of the leaser under the long lease.
Fraud and Mistake
Where there has been fraud, the time period does not commence, until the person discovers the fraud or could with reasonable diligence have discovered it. In this context, fraud requires a deliberate, deceitful and fraudulent conduct. There may, for example, the fraudulent concealment of the true possession.
The possession by a squatter is not if itself fraudulent. The fact that the possession happens unknown to the true owner, does not make it fraudulent.
There is a limited basis upon which the period may be extended due to mistake. A mistake about the extent of property or a boundary would not be sufficient. Indeed, many boundaries prescribed by deed are rectified by the Statute of Limitations, so that the title is corrected over time, so it accords with actual possession.
The exception for mistake will only be available in narrow exceptional circumstances. The fact that the true owner is mistaken as to his rights is not sufficient. A mistake, in this context, would include, for example, a mistake in a deed by which it did not reflect the agreed transaction.
Disability and Minors
Where the legal owner does not have the legal capacity to take action, the period for taking action is postponed. This would occur if the legal owner is under 18 years or is of unsound mind.
In this case, legal action may be taken within six years from the date the person ceases to under the disability or dies, whichever is earlier. In the case of actions to recover land or money charged on land, the maximum period is 30 years.
Acknowledgement
The period in which the true owner must take action will recommence afresh if the person in a possession acknowledges his title in writing signed by him or on his behalf. This might occur where the squatter offers to buy the title of the owner or take a lease. If the legal owner retakes possession during the limitation period, and the squatter or another takes possession again, the time limit will start again.
State Land
The standard period is longer for state authorities. Instead of 12 years, such authorities generally have 30 years to recover land and the date their first entitled to do so.
State authorities include government Department/ministers and the Commissioners of Public Works. Almost all state land is vested in the Minister for Finance (now generally the Minister for Public Expenditure) or the Commissioners of Public Works.
Much land it is not specifically owned by others may be vested in or claimed by the State under legislation. State authorities may be party to the title even if it is not immediately evident.
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