Adverse Possession – Title by Adverse Possession to Registered land

Applications under Section 49 of the Registration of Title Act, 1964.

1. Introduction

1.1. Section 49 Registration of Title Act 1964
Applications under Section 49 of the Registration of Title Act, 1964 are made under Rule 45 of the Land Registration Rules 2012, in LR Form 6. Particular attention should be given to the averments in LR Form 6 and the notes at paragraph 2 thereof in relation to the facts to be proved by applicant. All the information as set out in the said paragraph 2 of LR Form 6 must be included in the application. Such applications only relate to registered land.

For a list of frequently raised queries see Appendix A.

1.2. Squatter’s Title
Applications for registration based on long possession and the operation of the Statute of Limitations are often commonly known as Squatter’s Title.

1.3. Acts commonly cited

1.4. Indemnity
Where doubt arises in any case, consideration may, in consultation with the Chief Examiner, be given to obtaining an appropriate indemnity.

2. Adverse Possession

2.1. Possession
Possession of land implies actual occupation of the land, and/or receiving the rents and profits out of lands and generally performing those acts of ownership in relation to the lands that are inconsistent with the interest claimed. Of necessity, this involves dispossession of the owner. The Irish Courts have interpreted this liberally in favour of the dispossessed owner.

Feehan v Leamy (2000) 1EHL 118 (29th May 2000) As to whether the defendant had dispossessed the plaintiff , on the evidence, Finnegan J. found that the plaintiff had not discontinued possession, in that having acquired the lands he enforced his entitlement to possession by seeking and obtaining interlocutory relief against the defendant

“The plaintiff here at no time had any cattle or other animals on the land and did not require same for grazing. The only use to which he put the land was to visit it on a number of occasions each year when he would park his car and, standing on the road or in the gateway, look over the hedge or gate into the same….Insofar as the plaintiff’s title is concerned the presumption is that it extends to the centre of the road and so when standing at the gate looking into the lands the plaintiff was in fact standing on his own lands….the plaintiff was exercising all the rights of ownership which he wished to exercise in respect of the lands pending the determination of litigation. I find as a matter of fact that he was not dispossessed.”

This contrasts with the concept of possession in the English case of J.A. Pye (Oxford) Limited 2002 AER page 895. Although agents of the dispossessed owner had attended at the lands, they had not entered on the lands and their presence in the vicinity or at the entranceway did not amount to possession as far as the House of Lords was concerned.

Accordingly, in circumstances where any acts with the property by the owner have been established , consideration is to be given to refusal of the application on the grounds that it has not been established as a matter of fact that the owner has been dispossessed. Such issue is properly a matter for the court and not the Land Registry.

2.2. Proofs
These applications have been dealt with by the Land Registry since the coming in to operation of the Registration of Title Act, 1964, on 1st of January, 1967. Formerly, such applications based on long possession of registered land were made to the Court under section 52 of the Local Registration of Title Act, 1891, and the Court, following service of such notices as directed, if satisfied with the facts as disclosed by applicant made an Order declaring the title of applicant to be registered as owner of the lands on the appropriate folio and directed such registration to be made.
See pages 95, 96 McAllister Registration of Title.

In applications for registration of ownership of land based on long possession the proofs formerly required by the Court in applications under Section 52 of Registration of Title, 1891, are applicable. It is accordingly essential to be clear as to the difference between adverse possession and non-adverse possession.

2.3 Animus Possendi
This is the intention to possess the property and involves the intention to exclude the true owner.

Murphy v Murphy. It was held by the Supreme Court that for possession to be adverse it must involve the intention by the occupier to exclude the owner from the enjoyment of the estate or interest. The case is cited as authority for the proposition that, to succeed in a claim for adverse possession, it is necessary to show that the the true owner was dispossessed and that the squatter’s use and occupation of the lands was made with the intention of acquiring possession.

Feehan v Leamy (2000) 1EHL 118 (29th May 2000) In finding that the defendant did not have the necessary animus possidendi to dispossess the plaintiff Finnegan J. drew an analogy with the defendant in Leigh v Jack (1879) 5 Ex CA, citing the following passage of Cockburn CJ in at page 271; – I do not think that any of the defendant’s acts were done with a view to defeating the purpose of the parties to the conveyances: his acts were those of a man who did not intend to be a trespasser or to infringe another’s rights. The defendant simply used the land until the time should come for carrying out the objective originally contemplated.

On the balance of probability Finnegan J. found that the defendant’s state of mind was that litigation was pending and dragging on in relation to the lands which were lying idle and ungrazed. He had been a witness in that litigation and must have been aware of the proceedings. When questioned by gardai after an altercation with a fencing contractor in 1998 he said that the lands belonged to a man in America. This answer, he held, indicates to me the absence of the necessary animus possidendi – an intention to preclude the true owner and all other persons from enjoyment of the estate or interest which is being acquired.

Summarising he held: ..(the) defendant has failed to satisfy me on the evidence that he has dispossessed the plaintiff and also, insofar as he was in possession of the lands, that he was in possession of the same with the necessary animus possidendi.

When considering applications a stringent application of the above principles must be applied, i.e.

  1. that it is established by the applicant that the owner has been dispossessed and
  2. it is further established by the applicant that he had the necessary intention to preclude the owner.

The applicant should be put on strict proof of the above and where such principles have not been established consideration should be given to refusing registration.

2.4 Adverse

The Statute of Limitations provides, at section 18(1):

No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.

In Murphy v Murphy, (1980), IR 183, the words ‘adverse possession’ were held to mean simply that the possession claimed to be adverse must be inconsistent with the title of the true owner.

2.5 The intention of the true owner
In England it was held some time ago that there could be no adverse possession despite the fact that the owner was making no present use of the land, if the owner had some future plans to use the land; Leigh-v-Jack (1879) 5 Ex. 0264, CA. It was held, per Bramwell J., ‘In order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it.’ Since then the decision in Leigh v Jack has been construed as the Court having laid down a special rule that a squatter cannot dispossess a true owner unless the squatter’s use of the disputed land is inconsistent with the true owner’s purpose for it.

This approach has been followed by the Irish Courts: Cork Corporation-v-Lynch (1995) 2ILRM 598; (property required for road widening); Dundalk Urban District Council-v-John Conway High Court Unreported 15th December 1987 (Council’s use of land to run sewer not affected by occupation of claimant) and, most recently, Feehan v Leamy, referred to supra.

Despite the view expressed in Durack v Considine, May 1987, IR 677, that it may be too broadly stated, the principle outlined in Leigh v Jack still applies in this jurisdiction.

Accordingly in circumstances where it has been established that the owner, while having no present use for the land, has a specific purpose in mind for its use in the future and if the ousted owner demonstrates that the use by the squatter or claimant is not inconsistent with their ultimate intention in respect of the property, registration is to be refused. Such issue is properly a matter for the court and not the Land Registry.

2.6. Equivocal Acts of Ownership
Generally, it can be said that there is no adverse possession where acts relied upon are equivocal and not inconsistent with the enjoyment of the lands by the owners. The Courts in Ireland and England have in recent years considered several cases of equivocal acts claimed as adverse possession e.g. the grazing of cattle or other animals on lands is sometimes claimed as a ground for ownership of lands based on long possession. In Brown v. Fahy (1975) (unreported) High Court where Kenny J. held that the acts of possession relied on did not amount to adverse possession because they followed from the permissible grazing and were not inconsistent with the enjoyment of the lands by the owners.

So, although the squatter had remained in sole and exclusive occupation and possession, planted trees...

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