Fahy v Dillon

• Jurisdiction: Ireland
• Judgment Date: 29 July 2005
• Date: 29 July 2005
• Docket Number: RECORD NO. 8/02E
• Court: Circuit Court

THE CIRCUIT COURT

RECORD NO. 8/02E

BETWEEN:

JAMES FAHY

PLAINTIFF

AND

BRIAN DILLON

DEFENDANT

Abstract:

Land law - Adverse possession - Registered owner - Actual possession - Animus possidendi

Facts: The plaintiff claimed that he had been in adverse possession of land for upwards of twelve years and sought a declaration that he was the owner of the lands. The defendant counter-claimed that he was the registered owner of the lands.

Held by the Circuit Court (His Honour Judge McMahon) in dismissing the plaintiff’s claim and declaring as against the plaintiff that the defendant was the registered owner that on the balance of probability the plaintiff never actually possessed the land and produced no evidence that he had the relevant animus to possess the land or openly challenge the paper owner’s title.

Reporter: R.W.

1 Judgment of His Honour Judge Bryan McMahon delivered on 29th day of July, 2005

2 The plaintiff and defendant are adjoining land owners, the plaintiff owning a portion of land north of the disputed area and the defendant owning lands to the south. There was an earlier dispute between the parties which related to a triangular wedge of land where the parties’ boundaries met, which runs roughly east to west as one looks at the map used in court. If one draws a north south line along this triangular wedge, about one third of the way from the west end, the portion is again sub-divided to a smaller triangle (“A”) and an irregular quadrangle (“B”). In the earlier dispute the defendant in the present proceedings, Mr. Dillon, claimed to be the owner of portion “B” as well as being the owner of portion “A”. These issues were resolved by a judgment of His Honour Judge Peter O’Malley, at Athlone on 9th December, 1984. Judge O’Malley, held on that occasion that portion “A” belonged to Mr. Dillon, the defendant herein and that portion “B” belonged to the plaintiff herein.

3 The present proceedings relate to portion “A” only, and this portion is referred to hereafter as “the disputed triangle”. In spite of Judge O’Malley’s judgment, in

4 1984, the plaintiff herein, Mr. Fahy, now claims that he has been in adverse possession of portion “A”, the disputed triangle, for upwards of twelve years prior to the commencement of these proceedings in October, 2002 and seeks a declaration, inter alia, that he is the owner of the disputed triangle. The defendant in his defence and counterclaim denies the plaintiff’s claim and seeks a declaration against the plaintiff that, as registered owner of the disputed triangle he is the owner and is entitled to possession of the lands in question.

THE LAW

5 The law on adverse possession has been succinctly stated by Quirke J. inGriffin v. Bleithin. (Unreported, 12th March, 1999).

6 “Section 13(2) of the Statute of Limitations, 1957 provides that no action to recover land shall be brought by any person, other than a State authority, after the expiration of 12 years from the date on which the right of action accrued to that person, or to any person through whom he or she claims.

7 The relevant period of limitation in respect of-an action by a personal representative of the deceased owner of land seeking recovery of such land in succession to the owner is the period of twelve years which is laid down by Section 13(2) of the Statute of Limitations, 1957 - seeDorhan -v- Dorhan [1981] I.L.R.M. 473 and Gleeson v. Feehan and O’Meara [1991] I.R.R.M. 783.

8 Time begins to run against the owner of land only from the date on which a right of action accrues to him or to the person through whom he or she claims. The essential requirement for the running of

9 time is that the land is occupied by someone whose occupation is adverse to that of the owner.

10 Section 18(1) of the Statute of Limitations, 1957 provides that:

11 “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”.

12 It is now well settled that a person claiming adverse possession within the foregoing section must prove aminus-possidendi on his part.”

13 When the case is one between the paper (registered) owner and the person claiming by way of adverse possession (the squatter), as it is in the present case, the onus is on the squatter to show that he has been in adverse possession for more than twelve years. (SeeFeehan v. Leamy, at p. 4 of unreported of Finnegan J. delivered on 29th May, 2000). Not only must he show possession but he must also show that it is adverse to the paper owner’s title. (Idem. at p. 6/7)

14 Possession in this context has two ingredients:

1. (i) Actual or factual possession and,

2. (ii) Animus possidendi. (Idem p.8)

15 Factual possession is present when the claimant squatter has such control over the property that he has secured the property and excluded other persons from entering or using the property including the registered owner insofar as the law permits. An intention to possess is also required (SeeSeamus Durack Manufacturing Limited v. Daniel Considine [1987] I.R. 677 at 683 per Barron J.), however, so that a person, who merely uses the land in a temporary or incidental or opportunistic way

16 without forming the relevant intention to possess it, will not have established adverse possession.

17 The “adverse” element required to start the twelve year limitation period running against the paper owner must be a clear challenge to the paper owner’s title. No adverse element is necessary for the squatter vis-a-vis outsiders who have no interest in the property and do not claim through the paper owner, because possession alone will defeat any challenge from such quarters. To defeat the paper owner, however, the squatter must lay down an open challenge. Accordingly, if the claimant’s possession does not challenge the owner’s interest, if, for example, the claimant is in possession as a licensee (expressed or implied) or as a tenant in arrears or through over-holding, the clock does not start running against the paper owner. (SeeFeehan v. Leamy, Supra, p. l)

18 In cases such as-the present one, therefore, the plaintiff squatter must prove factual possession, animus possidendi and the adversity of his conduct as against the registered owner. In assessing whether he has established sufficient control over the property...