Property Claims
Overview
A person may acquire ownership of property by remaining in possession of it for the period prescribed by law, for the owner to take legal action to recover possession. This is sometimes referred to as squatting or adverse possession. The possession is adverse in the sense that it is in defiance of the title of the owner.
It is a fundamental principle of property law that a person in possession of the property is entitled to maintain and defend his right to possession, against all persons, except the “true” owner, with a legal title based on deeds or land registration. A person in possession can enforce his right by taking legal action for trespass or nuisance. A third party cannot set up the right of the true owner, against the person in possession. Only the true owner may assert this right. When the true owner’s right is barred, the possessor obtains his possessory title.
Adverse possession is sometimes referred to as squatting. However squatting may give the impression of a deliberate act possibly by a stranger. Many, if not most cases of adverse possession do not involve deliberate squatting in this sense.
It may be that neither the registered owner nor the person in adverse possession is aware that it is occurring. There may be an misapprehension as to the true position. Over time the de facto understanding of the parties may become regularised by adverse possession. For example, adverse possession may regularise title in relation to boundaries .
Acquisition of title by adverse possession often happens when a person remains on the property after the death of a family member, without obtaining a grant of probate or letters of administration or any formal vesting of title. This commonly occurs with property which is passed from one generation to the next, such as a farm.
Proceedings Required to Stop Clock
The Statute of Limitations places time limits on the periods during which the various types of legal claims may be initiated. The legislation applies to all claims and provides differing time limits, for different types of claims. Most claims for the recovery of land and buildings provide a twelve-year time limit. See generally the separate section on the statute of limitations in the context of other claims.
The Statute of Limitations requires that legal action for the recovery of possession of the land must be commenced within 12 years.Once issued the proceedings must be served within a certain period or they will lapse.
The period runs from the time when the claimant is first entitled to take legal action. Therefore, if a person is in possession of property without consent in defiance of the owner’s rights, the owner must commence legal action within 12 years or lose that right, by failure to do so. Where the “true owner” (or “legal owner”) has lost his right to take legal action, the person in possession obtains an effective title, in the sense that the true owner can no longer take action to dispossess him.
Rights of Action Affected
An action to recover 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 Statute of Limitations does not affect the jurisdiction of the courts to refuse equitable relief on the grounds of delay. See our chapters generally on equitable remedies and defence. This discretionary right of the Courts of Equity to deny equitable relief on account of delay operates separately from the Statute of Limitations.
This may mean that an owner may lose certain critical rights unless he takes action within a shorter period in particular where the other party is misled and has acted to his detriment. The key legal right of ownership will not generally be extinguished onto the statute of limitation period expires. However, the absence of equitable remedies may be problematic. See generally the sections on equity.
Title by Possession
The period of possession by successive squatters can be accumulated for the purpose of the Statute of Limitations. The possession must be continuous. If one squatter abandons possession and another later takes up possession, the periods cannot be added.
The successor may take his predecessor’s period of possession. The clock does not have to restart, provided he takes immediate possession. In contrast, if the person in possession abandons that possession and he or another re-enters possession, he does not acquire take the benefit of the predecessor’s period of possession. The legal owner will have a fresh right to recover possession.
A person in possession may transfer his so-called “possessory” title to another. That owner or successor takes the benefit of the period of the possession of the predecessor. In this way, a person in possession may give a possessory title, even though the title is vulnerable to a claim by the true owner/legal owner, until the relevant period has elapsed.
A person who has been in adverse possession for a sufficient length of period may apply to the Land Registry to be registered as owner. If the case is sufficiently clear course a title with a lesser State guarantee, labelled a possessory title will issue. An application can be made both in respect of existing registered title and title that is not already registered in the Land Registry; unregistered / Registry of Deeds title. If the position is not sufficiently clear cut , and/or be disputed, the matter may be referred to court. The applicant may be required to prosecute proceedings or abandon the application.
Special Periods
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 the 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.
Exceptions to 12 Years
The State and some State Authorities have longer periods in which to recover possession. This longer period is usually s 30 years. In any given case it may be that the entity with title, enjoys a longer period in this way.
A 60 year period applies to possession of the foreshore i.e. between high and low tide.
The period in which a legal owner may recover possession is generally 12 years. In some cases, this period is extended and is some cases it is shorter. Legal action must actually be instituted by the issue of court proceedings for possession within this period. These cases are dealt with in detain in the next section
Equitable Interests
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 provisions 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.
Adverse Possession
“Adverse possession” requires that the squatter be in possession of the property. The degree of possession must be such that the “true” owner is entitled to take legal action to recover possession. Possession does not necessarily mean continuous physical possession. There must be an intention to possess coupled with acts and conduct giving effect to that intention.
What constitutes adverse possession will depend on the nature of the property and how it is used. There must be a sufficient degree of exclusive physical control or occupation. The legal owner must not himself be in possession. The claimant’s possession must be inconsistent with the legal owner’s possession. In the context of leased land, possession of the rent is equivalent to possession. A person may acquire title by collecting the rent as if he was the true owner for over the relevant period, generally 12 years.
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 titleholder.
This is a very important and critical exception. In many cases where one person is in possession of title owned by another, possession may be by way of consent. The consent may have been given a long time ago.
Possession of property under a lease is not adverse to the title of the landlord. It may be adverse to the title of the tenant. Leases raise particular issues which are the subject of another chapter.
Nature of Possession Required I
Acting as if one is owner, would be good evidence of possession. For example, building on land, fencing it, and doing things that are normally done by the owner, tends to show possession. Some apparently significant acts may not necessarily indicate exclusive possession. Temporary grazing or temporary storage of material on land may not constitute exclusive possession. Each case is however different, and each may raise matters of interpretation.
The claimant must intend to possess and have control of the property without the consent of the true owner. A person in possession with the consent of the true owner is not in adverse possession. A person in occupation as a tenant or otherwise with the owner’s consent is not in adverse possession. The possession is not adverse to that of the true owner but is consistent with it. It derives from the true owner’s specific consent.
The Statute of Limitations time limit is stopped by the commencement of proceedings. If adverse possession terminates at any point, the period will commence running again, provided that it has not yet become statute barred by reason of the expiry of the 12-year period.
Nature of Possession Required II
A person in possession of property need not prove that he has title, unless challenged by a person with a better title. A person with the better title may dispossess a possessor with a weaker title or no title at all. 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 number of cases have turned on whether the claimant is in possession adverse to that of the documentary title holder. The degree to which possession must be inconsistent with that of the true owner in order to be adverse has been a question on which the courts have disagreed over the years. In some cases, the courts have held that there could be no adverse or inconsistent possession if the true owner had no present use, but had some future intended use for the land.
The most recent UK Supreme Court cases have laid less emphasis on this approach. They have instead, pointed to the primacy of actual possession on the part of the claimant, as the key factor and have given less weight to the true owner’s intention.
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.
Nature of Possession Required III
Questions may arise as to whether, and to what extent, the claimant who seeks to assert or acquire title, has been in possession. Questions may arise as to the extent of the property possessed. Possession will usually involve physical presence, but not necessarily continuos occupation. Possession signifies physical control and intention.
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.
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, used for parking, have been found to be insufficiently unequivocal, to constitute dispossession.
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 nature of the property.
Human Rights
The law in relation to adverse possession was subject to considerable uncertainty in the first decade of the Century. The identical English legislation on the loss of title by adverse possession was challenged on the basis of incompatibility with the Human Rights Act.
After being found incompatible with the European Convention on Human Rights by the House of Lords/UK Supreme Court with whom the First Instance chamber agreed, the Grand Chamber of the European Court of Human Rights, by ten to seven, upheld the consistency of former England and Wales Statute to Limitations on a property, as compatible with the European convention and human rights.
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 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 that 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.