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Adverse possession of company land in Ireland is not an issue according to the. PRAI. The Statute of Limitations 1957 operates fairly in ...
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Adverse possession has been described as a “debilitating”^1 experience and acts as a “blunt instrument”^2 of necessary legislation in modern society. It is a device that ends litigation. Legislation for abolition would lead to greater societal difficulties. Statistically land theft is rare and given that ownership of propertycarries a duty an owner should be vigilant. One sentence on the property folio could alert an owner of the danger of inadequate fencing. Although aspects of notification as in the Land Registration Act 20023 may be more desirable. The area of compensation payable to the title holder would be unworkable andcould lead to acrimonious disputes. However the value of land does not at present enter into squatter activity although it appears central to the dissenting judgements in Pye^4_. Pye_ needs to be seen in isolation as a very unusual case. Adverse possession of company land in Ireland is not an issue according to the PRAI. The Statute of Limitations 1957 operates fairly in protecting land ownership. Although land purchased from the public purse should carry the longer recovery period of thirty years, the timeframe of twelve years is adequate in relation to private property. The timing of activity on the ground can be assisted byphotographs from the OSi. (^5) The Constitution adequately protects private property and better access to justice could be achieved if court costs were tax deductible for individuals as they are for companies. In summary the survey analysis concluded that squatter behaviour is repetitive ifleft unaddressed. The lack of professionalism amongst those involved in land measurement needs resolution. Suggestions in relation to the use of GPS satellite maps in the Green Paper Proposing Reform of Boundary Surveys could lead to confusion and in the wrong hands further land theft. A better proposition would be to utilise the OSi mapping that dates back to the early 19combined with a moderate archaeological survey. th^ century Overall the doctrine of adverse possession is an essential mechanism acting to stabilise title and has traditionally worked well although sometimes unfairly.
(^1) Charleton Denise. Smithfield, Dublin, April 2007. RTE News Bulletin following settlement of the Charleton/Kenny case (^2) McDermott Paul Anthony quoted in The Irish Times Holland Kitty, Whose land is it anyway? (^163) Land Registration Act 2002.th^ June 2007. (^45) JA Pye(Oxford) Ltd v. United Kingdom [ECtHR no.44302/2, Grand Chamber August 30, 2007.] Ordinance Survey Ireland, Phoenix Park, Dublin.
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Acknowledgements
I wish to extend my sincere thanks to Ruth Cannon for her encouragement and suggestions. I regarding orientation and research techniques and all those who replied to also acknowledge time given by Fergus Ryan and Elaine Fahey, my questionnaire and face to face questions with tolerance and exactitude. I mention particularly Catherine Tracey and Frank Treacy of the Property Registration Authority who helped supply up to date vital statistics.
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2.3 The Land and Conveyance Law Reform Bill and
Introduction Adverse Possession concerns rights acquired over land through exclusive use and possession adverse to the ownership rights of another person. Denise Charleton described the experience as debilitating following the settlement of the Charleton/Kenny land dispute in 2008. In contrast the Dunsink Lane settlement received little publicity, when travellers were paid in excess of twenty million pounds by the State to vacate property the size of Phoenix Park. Lord Haughey’s claim on neighbouring land in Northern Ireland failed. However, many paper title holders are affected by squatters without ever realising their land is being seized. This happens through genuine error; misreading a will, confusing parcels of land, a fence in the wrong place or the owner remaining ignorant of the squatter’s true intention. Issues around the Pye^1 decision and questions arising from the endorsement of the doctrine are explored. Possessory title or adverse possession as it is commonly called is a painful and expensive issue to address and while law is not emotional the terminology used to describe squatter activity and wrongdoing are intrinsically linked to position the activity to the realms of unlawfulness. This thesis questions: ¾ Where the value of adverse possession lies in modern society and has it outlived its necessity? ¾ Should it be allowed in very limited circumstances? ¾ Should there be an onus on the authorities to protect private property further given the high cost of land and housing?
(^1) JA Pye (Oxford) Ltd v. United Kingdom [ECtHR Application 44302/02, November 15, 2005.]
¾ How does the Statute of Limitations 1957^2 operate to protect the rights of the squatter and the paper title holder? ¾ Does the Constitution adequately protect private property? Squatting is controversial, argumentative and at variance with a reciprocal approach to the ownership of land for value. Whatever the view on the doctrine, it remains on the Statute Books and submissions to the ECHR by the Irish Government during Pye^3 urged retention in particular circumstances to settle and quieten title. It acts in a beneficial way to protect future owners from old extinguished and stale claims to land that could be made for illogical, cruel or unjust reasons. “The policy of limitation was stated by Streatfield J, in R.B. Policies at Lloyd’s v Butler^4 “ It is a policy of the Limitation Acts that those who go to sleep upon their claims should not be assisted by the courts in recovering their property, but another, and I think equal policy behind these Acts, is that there shall be an end of litigation” ……” This thesis attempts to discern the logic of some of the judgements made distinguishing areas of comparative law and how time, evidence based information and the Constitution and the Convention may act in Ireland to better protect the paper title holder. Appreciation is extended to all who participated in the survey part of this research, newspapers, their readers and litigants.
(^23) Statute of Limitations 1957. 4 JA Pye (Oxford) Ltd v. United Kingdom [1950] 1 KB at p. 81, [1949] 1 All ER, at p. 229;^ [ECtHR Application 44302/02, November 15, 2005.] A’Court v Cross (1825) e Bing at p. 332, per Best CJ “It is an Act of peace. Long dormant claims have often more of cruelty than of justice in them” quoted inMaudsley R H and Burn E H Land Law: Cases and Materials (London, 1980) at 151
England in the Victorian era acquired Superpower status through Empire, many were lost in wars and battles leaving some property holders without paper title or any written documentation exercising all rights of ownership unchallenged and unable to alienate land or locate true owners in a developing commercial economy. Persons rightfully entitled “ to land or other property have by neglect on their part to assert their rights slept upon them so long as to render it inequitable that they should disturb an enjoyment to which they have been tacit parties ( Adnam v. Sandwich, 2 Q.B.D. 489).^6 The 1833 Act settled a time limit of twenty years for the recovery of land in an effort to make land freely alienable. Sect. 2 of the Real Property Limitation Act, 1833 was eventually repealed and the R.P.Lim. Act, 1874 Sect 1 reduced the period to twelve years after the right of action accrued^7 this remains the term in Ireland today under the Statute of Limitations, 1957.^8 Other limitation periods exist, 30 years to recover land by a State authority^9 and 60 years for the recovery of foreshore^10 following the date on which the right of action accrued. State bodies within the 1957 Act are: a Minister of State, the Commissioners of Public Works in Ireland, the Irish Land Commission, the Revenue Commissioners or the Attorney General. “Historically, the length of title a vendor is required to show has always been closely linked to the limitation period…..a purchaser is probably willing to assume that any
(^6) Carson Thomas H and Bompas Harold B Carson’s Real Property Statutes (reprint 1910 Oxford 1981) at (^1147) ibid. at 125 (^89) 1957 Act, s 13(2)(a). 10 1957 Act, s 13 (1)(a). (^) 1957 Act, ss 27 and 28
claim to the land arising before the statutory period of title ….has been barred under the 12 year limitation period.^11 However this is not so where there has been an acknowledgement with the previous owners whether verbal or in writing although proving this acknowledgement may prove a difficult hurdle to overcome. Another requirement was believed to exist in the past i.e. that if an owner had a future purpose for the land, adverse possession could only be achieved if the squatter could successfully frustrate that purpose. 1.2 POSSESSION Historically, going back to Roman law, possession was ownership of property, control, as in war and territory, goods and chattels. Roman law relies on corpus i.e. physical control and animus , i.e. the intention to exclude others.^12 The interpretation of possession today is closely associated with maintenance, access to and walking land combined with other ownership duties of “use and enjoyment of land”.^13 As Lord St Leonards said, “It is perfectly settled that adverse possession is no longer necessary in the sense in which it was formerly used, but that mere possession may be and is sufficient under many circumstances to give a title adversely”^14 However, intention attitude and behaviour are paramount in establishing a possessory title pursuant to the Statute^15 and it must be shown that an animus possidendi existed for the duration of the period of limitation and “no right of action to recover land shall be deemed to accrue
(^1112) MacKenzie Judith-Anne and Phillips Mary Textbook on Land Law (Oxford, 9th (^) ed., 2002) 135 13 Keenan, DenisDeLondras, Fiona.^ Smith and Keenan’s English Law Principles of Irish Property Law^ (London, 9 (Dublin, 2007) [14-22] 380th^ ed., 1989) 426 (^14) Dean of Ely v Bliss (1852) 2 De GM & G 459 at 476-7 quoted in Wylie. J.C.W. Irish Land Law (Dublin 3 (^15) Statute of Limitations, 1957rd^ ed., 1997) [23.05] at 1080.
to require the exercise of high levels of possession therefore implicitly favouring the paper owner.^21 In theory a “squatter, from the first moment of dispossession, has a fee simple relative to every one except the dispossessed title holder, or anyone with a better title than the dispossessed title holder”^22 The “right stemming from possession, is known as the jus possidendi”^23_._ Possessory title can be transferred by will or inter vivos and will operate in the same way and have the same material value on the open market that the extinguished title of the dispossessed owner once had. 1.3 PARLIAMENTARY CONVEYANCE THEORY Following the introduction of the 1833 Act , Parke B stated “ The effect of the Act is to make a parliamentary conveyance of the land to the person in possession after the period of twenty years [as it then was] has elapsed ”^24 This view was accepted in Rankin v. McMurtry^25 “where Holmes J stated: Whatever the mode of transfer, I am of opinion that the estate and interest the right to which is extinguished, so far as the original owner is concerned, became vested in the person whose possession has caused such extinction .”^26
(^21) McInerney, Patrick A. “The Irish Law on Adverse Possession: Pro Adverse Possessor or Paper Owner? A Moral or Public Policy Objective? - A Comparative Analysis” (2008) 13(2) Property Law Journal 33 p.5 Conveyancing and (^21) Jourdan Adverse Possession 2003 paras 5.01 – 5.04 quoted in McInerney, Patrick A. “The Irish Law on Adverse Possession: Pro Adverse Possessor or Paper Owner? A Moral or Public Policy Objective? - AComparative Analysis” (2008) 13(2) Conveyancing and Property Law Journal 33 p. (^2223) Lyall Andrew Land Law in Ireland (Dublin, 2000) at 886. 24 Cannon, Ruth.Parke B Doe d Jukes v. Sumner^ Land Law^ (Dublin 2001) 134 (1845) 14 M & W 39 at 42, 153 ER 380 quoted in Lyall Andrew Land Law in Ireland (^25) (1889) 24 LR Ir 290 quoted in Wylie. J.C.W. (Dublin, 2000) at 884. Irish Land Law (Dublin, 1997). (^26) Wylie, J.C.W. Irish Land Law (Dublin, 1997). 1082
The court approved a passage from the leading treatise of the time which stated: “ Though the title extinguished….. is not directly transferred by the statute to the wrongdoer who has been in possession, yet the title gained by such possession, being limited by rights yet remaining unextinguished, is clearly commensurate with the interest which the rightful owners have lost by operation of the statute, and must, therefore, it is apprehended, have the same legal character, and be freehold, leasehold or copyhold accordingly”.^27 This statement “falls short of saying that there has been a parliamentary conveyance of the former owner’s title. It merely asserts that the dispossessor’s title is similar in nature to the former title: it does not say it is identical.^28 However this view was rejected by the Court of Appeal in Tichborne v. Weir^29 a case on leaseholds. “Lord Esher MR and Bowen LJ both held that the previous title was destroyed and not conveyed to the dispossessing tenant ”^30. However the “court in Tichborne accepted the parliamentary conveyance theory in relation to freehold ”^31 but not to leaseholds, appears to have been accepted “obiter by the Irish Court of Appeal in O’Connor v. Foley^32 However the problem with the parliamentary conveyance theory is that “it does not sit comfortably with the literal meaning of the words “the title of the owner is extinguished” Meredith^33 asked, “how can you reconcile extinguishment and
(^27) Darby and Bosanquet. Statutes of Limitations in England and Ireland (1st (^) ed. 1867) p 390. quoted in 28 Wylie, J.C.W.Lyall, Andrew.^ Irish Land Law Land Law in Ireland^ (Dublin, 1997). 1082 (Dublin, 2000) at 885. (^29) (1892) 67 LT 735, M & B 178, 709, followed in Taylor v. Twinberrow [1930] 2 KB 16 quoted in Lyall, Andrew. (^30) Ibid. Land Law in Ireland (Dublin, 2000) at 885. (^3132) ibid. 33 [1906] 1 IR 20. quoted in Lyall Andrew“A Paradox of Sugden” (1918) 34 L.Q.R.253 quoted in Woods. Una, “Adverse Possession of^ Land Law in Ireland^ (Dublin, 2000) at 885. unregistered Leasehold Land” (2001) 36 Irish Jurist 305
Therefore an adverse possession of “leaseholds, the squatter can be removed by a forfeiture^42 on the part of the landlord, even if he is prepared to pay the rent and observe the covenants in the lease. This turns the whole principle of adverse possession on its head.”^43 This is enunciated by Griffin J referring to Fairweather^44 he stated : “……a squatter on leasehold land can be ejected however long the lessee has been out of possession – be it 12 years, 120 years or 900 years. It seems to be that such a result would entirely defeat the object of the Statute of Limitations”^45 If the dispossessor’s title is subject to rights which have not been extinguished, rights which bound previous owners will bind the dispossessor. However in relation to contractual obligations Walsh J in Perry states: “ the ousted lessee remains bound contractually to the lessor to perform the covanants in the lease….a contract is a personal obligation not dependent upon the promissory having any estate in the land, unless the parties expressly say that it is.^46 On leasehold land the squatter is bound by the terms of the lease and his interest in the land terminates when the lease comes to an end. If the squatter remains on the land for a further twelve years, then the lessor will be dispossessed as happened in Pye.^47 Although the Grahams made efforts to renew the lease without success however they remained on the land in possession without challenge for in excess of the twelve year (^4243) 1957 Act s16(1) 44 Cannon, Ruth. Fairweather v. St Marylebone Property Co Ltd.,^ Land Law^ (Dublin 2001 at 139 [1963]AC510 544 per Lord Denning. (^4546) Per Griffin J at 129 quoted in Lyall, Andrew. Land Law in Ireland (Dublin 2000) at 909 909.Per Walsh J at 119, Griffin J at 130 quoted in Lyall, Andrew.^ Land Law in Ireland^ (Dublin, 2000) at (^47) JA Pye (Oxford) Ltd v. United Kingdom [ECtHR Application 44302/02, November 15, 2005.]
period. On unregistered leasehold land adverse possession extinguishes the title of the dispossessed owner. However in Gleeson v. Feehan^48 the statement is unequivocal Keane J stated: It is clear from the decision of this Court in Perry v. Woodfarm Homes Ltd^49 that, at the expiration of the limitation period, there is nothing in the nature of a ‘parliamentary conveyance’ to the person in adverse possession. Since, however, under s. 24 of the Statute of Limitations 1957,^50 at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished. The Law Reform Commission has recommended the re-introduction of the parliamentary conveyance in the context of the adverse possession of leasehold land.^51 This would have the effect of alerting the squatter to his obligations under the terms of the lease. 1.4 ADVERSE POSSESSION - GENERAL All court hearings relating to property must be first heard at the Circuit Court or at the High Court. There must be a title holder and a squatter or a person in whose favour the twelve year time limit has already run. “In order to be able to bring an action for the recovery of land one must first have a right to possession of that land”^52 The Statute states “No right of action to recover land shall be deemed to accrue unless the land is in the possession ….of some person in whose favour the period of limitation can run”^53 i.e. a trespasser without the owner’s consent or permission and adverse possession has
(^4849) Gleeson v. Feehan [1997] 1 ILRM 522 SC 50 Perry v. Woodfarm Homes Ltd., S.24 Statute of Limitations 1957^ [1975] I.R. 104 (^5152) LRC. Report on the Acquisition of Title by Adverse Possession (2002), p 10. 53 Cannon, Ruth. CLT Seminar “Adverse Possession” May, 20081957 Act s18(1)
writing^59 how on the day of a court hearing a judge will interpret the evidence or the Statute, the behaviour or the intention of the parties. There is nothing in the Statute^60 however that refers to the intentions of the true owner. The importance of intention relates mainly to the squatter i.e. excluding the owner. The intention of the owner may only have some relevant meaning if the squatter was affected by it in some meaningful way. A squatter therefore performing unchallenged acts of ownership and possession, i.e. fencing and locking the land off for his exclusive use, has after a twelve year period a possibility of dispossessing an owner provided strong and sustainable evidence based information can be brought before a court or the squatter remains on the land unchallenged for the limitation period. However an action seeking a declaration of title deeds^61 will stop the clock from the date proceedings are instituted. If the squatter has acquired adverse possession through fraudulent means or concealment of any type, time does not run against the owner until he is aware of the fraud.^62 Intermittent use of the land or payments to the owner by the squatter will never grant ownership, however any acts performed by the owner, however intermittent, minor or otherwise, will negative the squatter’s claim. Possession is never adverse if granted in writing or with the permission of the owner by lease or licence. It can however be obtained by a tenancy at will^63 after one year of possession with the permission of the landlord. Without this permission a tenancy at sufferance will result.
(^5960) 1957 Act s58(1) 61 Statute of Limitations, 1957.1957 Act s2(a) (^6263) 1957 Act s 71 1957 Act s17(1)(a)
If the owner is under a disability i.e. insanity or an infant, time does not run against the owner however when the squatter is in possession for the requisite 12 years. This is extended by a further 6 years after the recovery from the disability.^64 1.5 LOGIC FOR ITS INTRODUCTION AND NECESSITY Adverse possession was introduced to quieten title thus making land freely alienable. It also provides protection to future purchasers against old and stale claims to property. “ Many claims to title by adverse possession do not arise from a deliberate taking of another’s property, but rather through some kind of mistake …..[it] may assist an innocent party who has spent money and time on land which he believes to be his own ….[it] helps to ensure that land abandoned by its owner is not left to become derelict, or taken out of the property market…….it is said that the system of adverse possession facilitates and cheapens the investigation of title to unregistered land. ”^65 There are particular cases where people have been in possession of property “but documentary title has been lost or destroyed, or where people remain in possession of the land of a deceased and no representation is taken out on the estate.^66 Therefore the retention of the doctrine is paramount to stabilise land ownership. It is difficult to win a case where mistake plays a part, as wilful squatter activity in relation to the land is absent and possession cannot be adverse. If knowledge of the mistake can be brought within the limitation period it is possible to oust the squatter. However considerations relating to the expending of money on improvements and permission would make it very difficult to see mistake as squatting.
(^6465) 1957 Act s 66 MacKenzie, Judith-Anne and Phillips, Mary.DeLondras, Fiona. Principles of Irish Property Law^ Textbook on Land Law (Dublin, 2007) [14-08] 366^ (Oxford 9th^ ed 2002) 135
