Squatter's Rights - Adverse Possession

Adverse possession is a legal term commonly known as 'squatter's rights.' A successful claim of adverse possession can essentially displace the true owner of a property in favour of the squatter. In order for adverse possession to exist however, the squatter must enter possession of the property without the prior consent of the true owner of the land. Though the squatter is a trespasser on the land, through the doctrine of adverse possession, the squatter can succeed in extinguishing the rights of the true owner of the land and subsequently, gain legal possession of the land (note the changing attitude of the courts of trespassers to the doctrine of finders keepers!) Considerable reforms are needed in respect of the current law on adverse possession in Ireland, which was wholeheartedly neglected by the Land & Conveyancing Reform Act [2009]. Academically and professionally, people have questioned this area of the law as being a reflection and favouring of the intentions of the squatter over the intentions of the legal owner in respect of the property. The case law in this area highlights that the intention of the legal owner as to what they expect to do with the land is crucial in adverse possession proceedings. The extent of this relevance is what will be considered in this blog post.

Legislation and 'time running'

Section 13 of the Statute of Limitations Act [1957] provides that an action to recover land must be brought by the legal owner of the property within the limitation period. The limitation period for claims involving adverse possession is usually 12 years and 30 years for recovery of land by a State authority. A failure to claim within this time will provide that the true owner's title may be revoked. An important question which arises is when exactly does time begin to run against the legal owner of the property? Time does not begin until a right of action accrues against her. This occurs when 1) a discontinuance of possession has occurred by the legal owner and 2) adverse possession has occurred by some other person. Several factors may halt the limitation period from running such as if the owner recovers possession of the land, if the squatter abandons the property, if the true owner commences legal proceedings within the designated 12 years or if the squatter acknowledges the owner as the true owner. Also of importance here is that there is no requirement for the 12 year period to be adversely possessed by one singular squatter, and in many cases several squatters can occupy the land so long as it makes up a 12 year period.

This occurred in the case of Mount Carmel Investments Ltd v Peter Thurlow Ltd when the Plaintiff ceased to take an active interest in the property and the first squatter entered possession of the property in October 1970. In 1974, the first squatter fled the country and subsequently a second squatter occupied by premises. In February 1872, the Plaintiff issued a writ seeking possession. The court held that by the time the writ was issued, the Plaintiff's title had been extinguished since the second squatter accumulated the first four years of possession from the first squatter. As such, the 12 years running time had expired in October 1972.

Influencing factors for adverse possession

In deciding whether the possession is adverse, the courts will consider several factors. The first factor considered by the courts will be whether the squatter was in possession of the land without the prior consent of the legal owner. If the squatter is, for example, under a lease or other contract, this will not constitute adverse possession as there is a consent agreed between the parties. In the case of Bellew v Bellew, when a license granted in favour of the squatter ended, the time began to run in favour of him as he was possessing the land without the consent of the legal owner. Further, in the case of Dolan v Reynolds, Dolan resided in the property looking after his mother following his father's death. He continued to reside in the property following the death of his mother. The court noted that the money spent by Dolan in renovation costs of the dwelling house was done with the knowledge and encouragement of his father. The court found that this was overwhelming evidence that there was no adverse possession as there existed consent. A further factor the courts will consider is that the true owner must have discontinued possession. This would be proved by showing that the true owner is no longer engaged in acts of possession in relation to the property. This is an important factor when weighing up the argument of who the courts favour with regards to intention - the squatters or the legal owners? The courts will consider the legal owner's intention and this is reflected in the case of Mulhern v Brady. In these proceedings, the court was satisfied that the Defendant had not satisfied the requirement of discontinuance of possession of his land as he had been regularly visiting the plot, several times a year, and had even advertised for planning on the land, placing a for sale sign up and told the farmer to vacate the land as soon as we saw his grazing cattle on it. Further, in the case of Feehan v Leamy, the court heard that the only use the legal owner had of the land was to visit it and look over the hedge or the gate into the land. The legal owner did this on a number of occasions each year. The court held in favour of the legal owner, stating that he had not been dispossessed. The case is seminal as it evidences how the court take the intentions of the legal owner very seriously and act as a crucial means for assessing if adverse possession can even be claimed by the squatter.

The acts of the squatter will also be relied upon by the court as an important factor in determining if adverse possession exists. The squatter will not be considered to be adversely possessing the property if they are merely using the land casually. the squatter must in this respect, take unequivocal steps to demonstrate that he has dispossessed the legal owner of the land. Generally speaking, this can be done by fencing the land, or putting a lock on a gate as shown in the case of Powell v McFarlane. Considering this significant factor that the courts will look at, it can be seen how the courts have been criticised for favouring the intentions of the squatter over the legal owner of the property.

Animus Possidendi

The courts will finally consider whether the squatter has proved animus possidendi. This means that there must be an intention on the part of the squatter to exclude the true owner and all other persons from enjoyment of the land or estate. A belief by the squatter that he is the true owner of the land or estate is sufficient to constitute animus possidendi for example. The case of Murphy v Murphy demonstrates this. In the case, the testator's widow was unaware of her entitlement to her husband's estate as enshrined by the Succession Act [1965] under a clause in the will. As a result, the mother treated the entire land as vested in her two songs. The youngest son ended up selling his share to the other son who worked on the land full time as a farmer gaining economic profit from that work. These actions were held by the court to amount to adverse possession. The case also illustrated how time can accrue against the legal owner without their knowledge of them being the legal owner of the land, as long as fraud is not involved.

The doctrine of Leigh v Jack

The doctrine from the case of Leigh v Jack also relates directly to the future intentions of the legal owner of land. The English courts felt that, where the true owner had no immediate desire for the land but did have a specific use for the land in the future, the possession by the squatter which went against the legal owner's true intention could never amount to adverse possession. It would appear that the intention of the legal owner are seminal and majorly relevant as enshrined in the doctrine. In this case, the land was acquired for the purposes of building a street in the future. A squatter had been using the land for storing scrap metal. It was held by the court that the legal owner had not been disposed and that no animus possidendi existed on the part of the squatter as he was fully aware of the intentions of the owner for future use of the land, and that his use of the land was inconsistent with those intentions.

The doctrine was subsequently abandoned in the English law. In Ireland, the doctrine appears to have continued in operation. In the case of Cork Corporations v Lynch, for example, Cork Corporations had bought land for the use of incorporating it into the road as part of a road widening scheme. Lynch used the plot to dump crashed cars on. Lynch had put tarmac on the plot and placed a fence around it. Lynch claimed he was entitled to the land by means of adverse possession. The court held in favour of Cork Corporation, stating that they had acquired the land for a specific purpose and that the actions of Lynch were inconsistent with those intentions and therefore, adverse possession and animus possidendi did not exist. In the case of Durack Manufacturing v Considine, the court held that the doctrine of Leigh v Jack only applied where there was actual knowledge of the intention of the legal owner by the squatter. This greatly minimised the impact of the principle in Irish law on adverse possession and in this regard, it could be argued that the courts are developing a favour towards squatters intentions in adverse possession claims. It is difficult to ascertain whose intentions hold greater precedent, and this is inevitably an issue of context and circumstance.

The Law Reform Commission report [2005] on the subject expressed that the doctrine was becoming increasingly controversial largely due to the fact that it appears to neglect the Constitutional right to private property as well as viewing the intention of legal owners as somewhat irrelevant, scholars have criticised the doctrine for operating unfairly and unjustly. The reforms proposed by the LRC were rejected by the Law Society due to their impracticality. The main proposal was the nature of the title acquired by the squatter at the termination of the limitation period. The LCLRA [2009] was subsequently enacted without consider or inclusion of any of the reform proposals of the LRC or indeed any meaningful reflection of societal attitude towards the law of adverse possession.

Concluding thoughts

Scholars have long acknowledged the problems inherent in the law of adverse possession, particularly on how it seemingly rewards an individual for their wrongdoing. At first sight, Dockray (1985) notes, the law of adverse possession can be viewed as one of 'unprincipled and neglected backwater' in Irish land law. O'Sullivan (2013) highlights how adverse possession has been seen as 'debilitating' experience that acts as a blunt instrument of necessary legislation in any modern society. To abolish adverse possession in his view would be to create more challenges than it answers, leading to a plethora of other societal difficulties in Irish land law. The doctrine of adverse possession operates to facilitate the functioning of the unregistered conveyancing system. In the case of Pye v United Kingdom, which placed the law of adverse possession under intense scrutiny in the European Union Courts, which stated that the doctrine was incompatible with the European Convention on Human Rights.