Adverse Possession & Registered Title
The principle of adverse possession and acquisition of title under the Statute of Limitations applies to a registered title. The Registration of Title Act provides for both acquisitions of title to existing registered title land and applications for first registration of unregistered title, based on adverse possession. This latter provision has the advantage of facilitating the creation of a Land Registry title, albeit generally a possessory title, in respect of which no other paper title will exist.
An application may be made to the Land Registry for registration based on possession. It must be in a prescribed format, supported by affidavit evidence which must set out the particular facts in detail, whereby adverse possession title has been obtained. If uncontested cases where the Land Registry is satisfied that title has been acquired, it may register that title, without reference to the court. In a contested, less clear-cut or complex case, the Land Registry may refer the matter to court.
Each case will turn on its facts. The key question is whether there is there is sufficient evidence of unequivocal continuous acts of possession, adverse to that of the owner with the title. In some cases, the facts alleged in the Land Registry application may be too equivocal to establish possessory title. Where the Land Registry is not satisfied that the facts are sufficient to establish adverse possession, the registrar will refuse an order. An appeal may be made to the court.
Estates of Deceased Persons
The Succession Act provides that actions in relation to the estate of a deceased person are “statute” barred after six years. The issue commonly arises after the death of the last registered owner, where some members of the deceased owner’s family remain in possession of the property, typically a farm or dwelling house, while others do not. The survivors who remain in possession may ultimately acquire title, without any formal administration and irrespective of entitlement under a will or on intestacy.
Freehold unregistered title property vested directly in the heir at law of the deceased owner, until law reforms in the 1950s and 1960s. Registered title passed in a different manner under Registration of Title legislation, so that the estate vested in personal representatives on death, for distribution to the persons entitled. The personal representative is a quasi-trustee, subject to fiduciary duties, which would prevent the operation of the Statute of Limitations under general principles.
The Statute of Limitations modified the principle that a personal representative was a trustee for the purpose of the legislation. The Supreme Court later held that a personal representative is not a trustee for beneficiaries in the context of registered land so that he can bar the rights of beneficiaries by possession even under the older legislation.
The Statute of Limitations provided that as and from 1st January 1959, the rights of beneficiaries under the estate of the deceased were barred after twelve years against persons in possession of real property, adverse to their interest in it. This period was reduced to six years as and from 1st January 1967. In the cases of persons under a disability, there is an additional three years after the date of that person’s death or his recovery from the disability.
The period of time for recovery by the personal representatives of land in the possession of third parties in 12 years. This may lead to anomalies in some cases, as the beneficiary’s rights are statute barred after six years.
A separate, but similar principle is that of baileeship. 19th-century case law established that when several persons went into occupation, adversely to the title of another, they acquired title as tenants in common. This being so, their possession was not necessarily inconsistent with absent tenants in common, who acquired rights under the deceased’s estate. The Succession Act provides that in the case of deaths after 1st January 1967, shares in the deceased’s in an estate are acquired jointly, and not as tenants in common.
Notices are usually required to be served on persons who the Land Registry believes to be affected by the application. The notice will give details of the applicant’s claim. A period will be given in which to contest the applicant’s claim. The Land Registry may determine the parties to be served with notice of the application. It will consider what parties may in the circumstances, have an interest in the matter.
Notices may be required to be served on the registered owner and other persons appearing to have an interest. Where a person has left the jurisdiction for more than 20 years, notices may be dispensed with. If there is reasonable doubt on the matters asserted in the application, notices are likely to be required Notice is commonly required to be served on persons, in the vicinity of the lands who might have an interest.
In some cases, such as where rights of commonage are claimed, notice may be required to be published in newspapers or other media.
Objections must be made in writing by interested parties within a reasonable time. Where they do not disclose any valid legal grounds of objection, assuming the facts asserted are true, the Registrar may reject them and proceed to register. Where there is a conflict of evidence on key matters, the registrar may refuse to register or refer the matter to court.
The objectors are not necessarily normally given copies of the application.
The objector may be required to put his objection in an affidavit. If the Registry is satisfied that there are grounds which may defeat the application, which the applicant does not answer on being given the opportunity so to do, then the registrar may reject the application. The applicant has a right of appeal to the High Court.
In some cases, the application is made to the Land Registry to give a paper title where documentary titles are lost. In this case, it is necessary to rely on the deeds and on possession on foot of it. Secondary evidence may be given of the lost deeds. A similar principle arises where entitlement arises under a will or intestacy, where the title has not been formally vested.
Where parties have acted in accordance with a lost deed or an unadministered, then the application is based on such title and possession, rather than on adverse possession as such.
Where a person holds land as joint tenants or tenants in common, a person in possession as a tenant in common is not deemed to be in possession for the benefit of those out of possession. Accordingly, a co-owner in adverse possession may acquire a title against his fellow owners.
McMahon Legal, Legal Guide Limited and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website.