Adverse possession occurs when a third party occupies land, without the true owner’s permission, and then asserts ownership over it. The occupation must be continuous, open, and of a definite and positive character for a specific period, typically 12 years.
What are the main components of adverse possession?
Two primary elements must be proven by the third party:
- Factual possession: Physical control over the property akin to that of the true owner.
- Intention to possess: A clear intention to possess the property to the exclusion of all others, including the true owner, in a way inconsistent with the true owner’s title.
Special Considerations:
Adverse possession has special considerations for certain relationships. For instance, in Moore v Moore, it was decided that such claims between spouses fall into a distinct category, where the typical limitation periods may not apply. Also, longer periods of 30 years apply where the land in question is owned by the State.
Common examples of Adverse Possession:
- Boundary disputes: When a neighbour encroaches on an adjacent property by extending a fence, garden, or driveway beyond their own property line, and this encroachment goes unchallenged for the statutory period.
- Abandoned property: When someone occupies an abandoned building or piece of land and maintains it as their own without the owner's permission for the requisite period.
- Inherited property: When heirs fail to assert their ownership over a piece of inherited land, allowing another party to occupy and claim it for the requisite period.
How to claim adverse possession in Ireland?
A person who has been in continuous possession, without the true owner’s consent, for at least 12 years can apply to Tailte Eireann (the Irish Property Registration Authority) to have the legal title to the property transferred to them.
A sworn statement of facts must be submitted to demonstrate the applicant has had both physical occupation and the intent to possess the land without the true owner’s consent for twelve years. This statement should include when the applicant entered into possession, the uses they made of the property and full particulars of the acts of possession. It should state the details of all persons whom the applicant claims to have barred. Documentary evidence must be provided, and this may include corroborative evidence such as written declarations by neighbours, or photographs.
Notice will be sent by the Registrar to the registered owner and to the owner of any registered charge on the title, as well as anyone who may have a possible interest in the property. The person(s) receiving the notice may either consent to the application or object within a certain period. Applicants who have had their application refused have the right of appeal to court.
How can a true owner protect their property interest?
As illustrated by case law, a true owner will be taken to continue to be in possession with ‘even minimal acts’. True owners can demonstrate control over the property by exercising some act of ownership, such as painting a property, erecting fences or signage, allowing livestock to graze land, or even walking the lands. True owners may also ask the person in possession to sign an agreement to rent the land, even for a nominal amount, or to acknowledge that they are there with the true owner’s permission.
The future?
There have long since been calls for reform of the adverse possession laws, as noted by the Law Reform Commission in its “Report on Reform and Modernisation of Land Law and Conveyancing Law”.
For more detailed information, please contact Colm Farrell.
The content of this article is provided for information purposes only and does not constitute legal or other advice.