Background to Legislation
Older limitations laws did not provide an effective system of adverse possession. These laws were not updated and the effect was that no limitation period existed. The Real Property Limitation Act, 1833 modernised the law and simplified the law on adverse possession. It provided for a [20 year] period of limitation. A 12-year period of limitation was introduced by the Real Property Act 1874. This was maintained in the Irish Statute of Limitations, 1957.
The Statute of Limitations in relation to land differs to that in relation to other types of claim. It is not procedural in nature. Where it applies, it bars and extinguishes the title of the landowner.
Most instances of adverse possession do not involve deliberate usurpation by a stranger. Commonly, on the death of the title holder, the family members who continue in possession, acquire title by possession adverse to that of the others, who may have an interest, for example, under or will or on intestacy.
Many boundaries are rectified over time by adverse possession. The encroachment of hedges and ditches may over time come to delimit the possession of the owners on either side, so in time, the title becomes vested in accordance with the respective physical holdings, even if initially, it was the new physical boundary did not reflect the legal boundary.
The law in relation to adverse possession was subject to considerable uncertainty in the first decade of the century. The European Court of Human Rights First instance Court held that the UK law on adverse possession (which was in practical terms identical to the Irish law) violated the Convention’s protection on the right to the peaceful enjoyment of property.
The United Kingdom amended substantially, its laws on adverse possession effectively requiring that notice be given to the owner who was being dispossessed, to at least two years prior to a claim being made. This gave the “true owner” a last chance to prevent the acquisition of title. Ireland did not amend its laws. Ultimately the Grand Chamber of the European Court reversed the decision of the First Instance Court and upheld the pre-existing British legislation.
Similar to Prescription
A title which is defective may be cured over time by possession. Adverse possession has the consequence of quieting title. This is reflected in unregistered title conveyancing practice which involves the proof of title by possession in accordance with deeds since “root of title”.
The Statute of Limitation applies to land which included corporeal hereditaments and rent charges. It includes interests in the proceeds of the sale of land. Land does not include “incorporeal hereditaments”, principally easements and like rights.
Separate rules on prescription exist at common-law and under the Prescription Act for the acquiring of easements. The 2009 Conveyancing and Land Law Reform Act has reduced the period of use required for acquisition of easements to 12 years, being the same as that generally required acquisition of title by adverse possession.
Rights of Action Affected
An action to recover a land includes a number of types of proceedings, including declarations of title, actions to recover possession, actions by mortgagees and actions for possession under the Registration of Title Act in respect of a charge.
The right to recover land accrues (arises/commences) discontinuance of possession or dispossession. In the case of death, the discontinuance dates from death and the right of action accrues.
The limitation period for State authorities is 30 years. A State authority includes a Minister of State, the Commissioners of Public Works (OPW), the Revenue Commissioners and Attorney General. It does not include any other entities, including local authorities, semi-state bodies and their equivalent.
A special sixty year period applies to actions to recover foreshore. The foreshore is the bed and shore lying below the high water mark or ordinary or medium tides, of the sea and of every tidal river and tidal estuary and of every channel, creek and bay of the sea or any such river or estuary.
The right to recover possession accrues when the relevant estate “falls” in, i.e. when the right to it arises. In the case of future interest, that right will not accrue until the interest commences or falls into possession. If the possession commences prior to the future interest accruing and falling into possession, the period is later of 12 years and the date on which the right accrued to the owner of the prior estate or six years from the date on which the right accrued to the person entitled to the future estate.
Where a person has an interest in possession and a separate future interest in the same property, he may not generally bring an action in respect of his future interest, if his interest in possession becomes statute barred. There is an exception if the person entitled to the intermediate estate recovers possession in the meantime.
In the case of a fee tail, the right of the grantor or person entitled on termination [on heirs of the body dying out] accrued in the normal way on the failure of heirs. Under the 2009 land reforms, the fee simple interest in effect vests in the holder of the fee tail interest provided that any period of protectorship has terminated. Accordingly, unless heirs have already died out before the Act the fee tail holder’s interest is increased to a fee simple.
The right of entry for breach of condition in a fee simple subject to a condition accrues when the condition is broken. Accordingly, 12 years later, the interest may be converted into a fee simple freed of the condition, by the operation of the Statute of Limitations.
The Statute of Limitations applies to legal and equitable interests. However, trustees cannot acquire title by adverse possession against a beneficiary.
Where land is held under a trust of land or trust for sale and is in the possession of one or more beneficiaries, the right does not accrue during such possession in favour of the trustees or beneficiaries. This does not apply if there is a sole person who is beneficially entitled. In this case, that person may bar the rights of the trustees as and from the outset.
In a case of trust land, a squatter or person in adverse possession, does not bar the interest of the trustees until the interests of beneficiaries are all barred. Accordingly, if they are underage, the time limit does not run against the trustee.
The Statute of Limitations makes special provision in respect of rights of residence. The right is deemed to be an action in the nature of a lien for money’s worth over the land for a limited period not exceeding life. It includes a non-exclusive right of residence and a right of support. The interest is subject to a 12-year period of limitations.
The period of possession by successive squatters can be accumulated for the purpose of the Statute of Limitations. The possession must be continuous. However, if one squatter abandons possession and another later takes up possession, the periods cannot be added.
Special provision has been made in respect of the estate of deceased persons under the Succession Act. This is of immense practical importance. Where, as is commonly the case, persons remain in possession of family property such as a farm or dwellinghouse, after the death of the title holder, without extracting a grant of representation and transferring title, those persons may acquire title by their adverse possession.
The possession of one tenant in common is not adverse to the possession of another at common law. Time does not run against trustees, which formerly included personal representatives The practical effect of these traditional positions, would be to prevent or severely limit the availability of adverse possession in cases of the type mentioned above.
The above provisions have been modified so that personal representatives are not deemed trustees. Beneficiaries who succeed in possession are deemed to do so as joint tenants. A co-owner in possession of the entirety or more than his or her undivided share of such land, is deemed not to have been in possession on behalf of co-owners who are not in possession.
The general period limitation is six years in respect of a claim against a personal representative arising from the estate of a deceased person.
See the separate section on applications to the Land Registry to establish possessory title by possession. Under section 49, of Registration of Title Act, an application may be made either to register the applicant in place of the current registered owner or to register an unregistered title in the Land Registry with possessory title.
The owner of the legal estate in property is presumed to be in possession of it. A person who seeks possession of a property, may that he has been in possession of the property. He need not prove that he has a documentary title. A person with the better title may dispossess a possessor with a weaker title. The person in possession cannot point to the stronger title of a third party, in order to defeat the claim to possession of the predecessor whom he has dispossessed.
A right to recover land is deemed to accrue when another is in possession of the land, adverse to his interest in it. Possession is not adverse if it is by consent, under a lease or a license or presumes some other interest granted by the title holder.
A number of cases have turned on whether the claimant is in possession adverse to that of the documentary title holder. Where the latter does not have an immediate use for land, the courts may hold that use and possession of the land by the claimant, is not adverse to that of the owner. This approach has been criticised. Even if this criticism is accepted, it may be that where the possessor is aware of the title holder’s intentions, does not have the requisite intention to dispossess. This approach has also been criticised.
Questions may arise as to whether, and to what extent, the claimant who seeks to acquire title, has been in possession. Possession need not be physical occupation. Possession signifies physical control and intention. Questions may arise as to the extent of the property possessed.
The adverse possession must be significant, positive and assertive in character so that there can be no doubt to the documentary title holder, that the claimant is in possession adverse to his title. Adverse possession implies an intention to possess to the exclusion of others. An intention to possess is an inherent element of possession, generally. The intention to possess, may be inferred from the acts of the parties.
The Statute of Limitations time limit is stopped by the commencement of proceedings. If adverse possession terminates at any point, the period will commence to run again, provided that it has not yet become statute barred by reason of the expiry of the 12-year period.
Less evidence is required for the continued lawful possession of a person with a documentary title, than is required to establish dispossession by an alleged squatter. Minimal acts of possession on the part of the documentary owner will be sufficient. In contrast, a person claiming dispossession must establish unequivocal acts of ownership, having regard to the ntture of the property.
What will constitute sufficient possession will depend on the circumstances. It will depend on the nature of the land and the particular acts of possession.
There have been cases where acts such as temporary storage of material, use for parking, have been found to be insufficiently unequivocal, to constitute dispossession. Occasional use may not suffice.