The Law of Adverse Possession in Ireland: Is the Doctrine in Need of Radical Reform?

Date01 January 2013
The Law of Adverse Possession in Ireland:
Is the Doctrine in Need of Radical Reform?
The doctrine of adverse possession represents a way in which an individual
can gain de facto rights through the long use of someone else’s land.1 The
law in Ireland is governed by the Statute of Limitations Act 1957. It has been
described “as a statutory approval of what would otherwise be thought to
be an amoral appropriation of land from the true owner”2 and is said to be
one of the most controversial features of modern land law.3 The principle
underscores the fact that possession and title have never been entirely juristic
phenomena.4 Ballantine has stated that the doctrine of adverse possession
represents an “an anomalous instance of maturing a wrong into a right
contrary to one of the most fundamental axioms of the law.”
In recent years,
the doctrine has been fuelled with uncertainty and confusion and subject to
immense criticism. It has “at f‌irst sight … the appearance of an unprincipled
and neglected backwater.”6 Some of the most controversial aspects surrounding
the doctrine include the adverse possession of unregistered leasehold land
and the animus possideni or intention to possess and the protections or lack
thereof, which are afforded to the true owner when he purchases property
for a future intended use. It is submitted that these areas of the doctrine are
in need of radical and immediate clarif‌ication in Ireland and this article will
endeavour to determine if the law is, in fact, in need of reform.
The f‌irst section of this article will give a brief historical background of
the doctrine and the justif‌ication for adverse possession. It will then examine,
both, the limitation periods which are in place to prevent actions relating to
land being brought after a certain period of time and the requirements which
are necessary to establish a successful claim of adverse possession. The second
section will discuss the adverse possession of unregistered leasehold land and
will make recommendations for its reform. The third section will outline the
* B.C.L., L.L.B., L.L.M. (Candidate U.C.C.)
1 R. Cannon, Land Law (Dublin: Roundhall Sweet & Maxwell, 2001), p.133
The Conveyancer’s Diary, “Defeating Adverse Possession by Looking Over the Hedge”
(2001) 6(1) C.P.L.J. 2
J.C.W. Wylie, Irish Land Law, 4th edn (Dublin: Bloomsbury Professional, 2010), p.1151
4 Gray and Gray, Elements of Land Law, 4th edn (Dublin: Butterworths 2000) cited in
O’Regan, “Pye v Graham – The Irish Reaction” (2007) 15 I.S.L.R. 122
5 Ballantine, “Title by Adverse possession” (1918) 32 Harv. L. Rev. 13
6 Dockray, “Why Do We Need Adverse Possession?” [1985] Conv 272
03 O'Sullivan 2.indd 43 11/06/2013 10:26
law relating to the intention of the owner and its effect on the doctrine as it
currently stands in both Ireland and England. It will also outline the decision
in JA Pye (Oxford) Ltd v Graham7 and its impact on UK law.
Historical Background and Justif‌ication for Adverse Possession
The doctrine of adverse possession was f‌irst established in England around
the year 1275 and was initially created to allow a person to claim a right of
from his ancestry. It was designed to prevent legal disputes over
property rights that were time consuming and expensive and also to prevent
the waste of land as it encouraged land owners to look after their land or else
face the consequence of losing title. The law that relied on the “seisin” was
deemed to be diff‌icult to establish and the Limitation Act (Ireland) 1634 was
enacted to allow for a person who was in possession of property for set periods
of limitation to acquire title to that property. Before the introduction of the
Real Property Limitation Act 1833, a person could be in possession of land
without having any title to it, yet this possession was not considered to be
“adverse”.9 The 1833 Act set a time limit of twenty years for the recovery of
land running from the time when a right of action accrues.
However, section 1
of the Real Property Limitation Act 1874 repealed section 2 of the 1833 Act
and the time period was reduced to twelve years, which is still the period
under the Statute of Limitations Act 195711 in Ireland today. Since 1833,
adverse possession has been simply construed to mean “possession of land
which is inconsistent with the title of the true owner”
and “mere possession
may be and is suff‌icient under many circumstances to give a title adversely.”
The existence of the doctrine of adverse possession has been justif‌ied for
several reasons. The Northern Ireland Law Commission has stated that the
main justif‌ication for the doctrine is its function in dealing with conveyancing
problems.14 A primary function of the law has been the quietening of titles
and making land freely alienable.15 The doctrine was f‌irst introduced to
promote certainty of title in a system of unregistered land where no system
of land registration was in place. This rationale worked on the presumption
7 JA Pye (Oxford) Ltd v Graham [2000] Ch 676
8 A seisin is “possession of a freehold estate in land”, Oxford Dictionary of Law, 6th
edn (O.U.P. 2006)
9 J.C.W. Wylie, Irish Land Law, 4th edn (Dublin: Bloomsbury Professional, 2010),
10 Real Property Limitation Act 1833, s.2
11 Statute of Limitations 1957 (No. 6 of 1957), s.13(2)(a)
J.C.W. Wylie, Irish Land Law, 4th edn (Dublin: Bloomsbury Professional, 2010),
13 Dean of Ely v Bliss (1852) 2 De GM & G 459, pp.476–477
14 Northern Ireland Law Commission, Supplementary Consultation Paper on Land Law,
(NILC 3 2010), para.2.34
15 De Londras, Principles of Irish Property Law 2nd edn (Dublin: Clarus Press, 2011), p.360
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