Adverse Possession

Adverse Possession – First Registration

Adverse Possession First Registration – Lodgement checklist:

The following should be lodged:

(a) LR Form 5 with exhibits.

(b) PRA compliant Map.

(d) Application Form incorporating LR Form 17

(e) Capital Acquisitions Tax (Consolidation) Act, 2003 Certificate {Section 62(2) or 62(7)}.

It is essential that Paragraph 2 of the LR Form 5 be comprehensive and detailed.

Possession for the Statutory period will have to be proved. This should include when the applicant entered into possession, the uses he/she made of the property and full setting out of the acts of possession. It should state the names and addressed of all persons whom the applicant claims to have barred.
The title against which possession is claimed will have to be identified i.e. whether it is leasehold or freehold or a fee farm grant etc.

To acquire title by adverse possession the applicant must:

Firstly establish the nature of the interest claimed in the property and
Secondly show how that interest devolved to the applicant
Specific persons must dispossess the original owner and
Those specific persons must enter into possession

Excludes the true owner and all others and
Excluding such acts of ownership, use and enjoyment to amount to exclusive possession
With the intention of acquiring the title of the original owner and
In a manner inconsistent with the title of the original owner.

Applications for First Registration Based on Possession – Your Questions Answered:

 What Documents do I lodge?

1. LR Form 5 with exhibits

2. Application Form incorporating LR Form 17.

3. Fees €500

4. PRA Compliant Map with relevant property outlined in red

5. Capital Acquisitions Tax (Consolidation) Act, 2003 Certificate [Section 62(2) or 62(7)]

What are the most common errors made in relation to adverse possession applications relating to unregistered land?

(a) LR Form 5 not lodged or incomplete.

(b) Omission of Capital Acquisitions Tax (Consolidation) Act, 2003 Certificate [Section 62(2) and 62(7)] This was formerly Section 146 of the Finance Act, 1994. An application cannot be accepted without this certificate which should be enclosed on lodgement.

(d) Persons against whom adverse possession claimed not identified.

(e) Acceptable map not lodged.

(f) Documents relied upon and averred to in LR Form 5 not lodged.

(g) Concentrate in paragraph 2 of LR Form 5 on adjoining property owned by the applicant instead of the property the subject of the application.

(h) When entered onto the property, acts of ownership and animus possidendi not clearly dealt with.

Can I make a Section 49 application in relation to unregistered land?

Section 49 Registration of Title Act 1964 relates to adverse possession of registered land only. The Registration of Title Act 1964 makes no reference to applications for first registration based on adverse possession. Rule 17 of the Land Registration Rules 2012 provides for applications for first registration based on long possession.

What is the relevant legislation in relation to adverse possession?

The Statute of Limitations Act 1957, sections 13, 14, 18 and 24 and Part III which deals with extension of limitation periods.

Where can I find PRA practice in relation to adverse possession of unregistered land?

See Practice Direction “First Registration and Other Examiner Cases”.  Practice Direction “Adverse Possession – Title by Adverse Possession to Registered Land” is also relevant.

What options are open to me if I cannot prove the title against which adverse possession is claimed?

 If an applicant can prove possession for the statutory period but there is difficulty proving the title against which adverse possession is claimed, it is open to the applicant to apply for Possessory Title ab initio. It is also open to the PRA to offer such Possessory Title at an early stage. In this regard Section 50(2) of the ROT Act provides Possessory Title can be converted on registration of a transfer for valuable consideration when the land has been registered for 15 years.

Can I make a bare Form 5 application and deal with specific Rulings as they arise?

 Full inquiries are made with the applicant prior to the LR Form 5 being completed and these inquiries should include all the relevant matters set out in the standard rulings of title.

Who will the PRA serve notice on?

Rule 50 of the Land Registration Rules prescribes the service of notices of the proposed registration. That Rule allows for notices to be served on such persons as the Property Registration Authority may direct. In practice the PRA serves notice on all identified/ necessary notice parties including adjoining/adjacent owners and such others as deemed appropriate or necessary. It may be necessary to direct service of notice in a newspaper circulating in the area, the newspaper with the greatest circulation, or in another County or Country.

How does the PRA treat objections?

 Notices specify that any objection to the proposed registration should disclose a valid legal ground. Where an objection discloses prima facie a valid ground [the objection is normally required to be on affidavit] the objector is informed that the matter is being taken up with the applicant’s solicitor and that a copy of the affidavit of objection will be forwarded to the applicants solicitor. We often suggest to an objector that a solicitor’s advice should be obtained.  If a request is made for a copy of the applicant’s grounding Affidavit a copy may be forwarded [usually we seek the consent of the applicant]. However we have to take care to ensure that ‘personal data’, within the meaning of the Data Protection Acts in relation to any party referred to in the grounding affidavit is redacted.  The same applies to potentially defamatory statements or allegations of a criminal nature. In such cases provision of a summary of the contents of the grounding affidavit of the applicant would be considered as an alternative [the same issues may also arise in relation to the affidavit of objection].

Form 5 Unregistered Land Sample Rulings

1. How is it shown that the title acquired by the applicant is an unencumbered fee simple rather than a lesser interest. [e.g. an interest under a long lease or a lease subject to a nominal rent in respect of which rent may not have been paid]. If it is a limited freehold then that is all that can be barred and will not be registered. Forty years title should be shown. [See paragraph 14.80 of Irish Conveyancing Law, 2nd Edition, J.C.W. Wylie].

 2. The names and addresses of persons formerly entitled to the freehold [or leasehold] and against whom adverse possession is claimed should be furnished. Full information within the applicant’s knowledge or procurement concerning them should be given.

 3. Lodge an affidavit in LR Form 5 of the Land Registration Rules 2012, with particular reference to paragraph 2 thereof.

4. The affidavit herein does not specify the lands in application. Please lodge an affidavit by the applicant specifying the lands by reference to a map.

5. Please lodge a PRA compliant map with the property the subject of the application outlined in red thereon.

The following Sample Rulings are designed to elicit the information necessary to comply fully with Ruling 1 and 2 above  and to assist the practitioner to construct the application in a manner that will facilitate the application being progressed in a timely manner.

6. It appears from the affidavit lodged that the applicants are the persons entitled to the lessee’s interest under a lease of the adjoining property and that they encroached on lands adjoining their lands. There is a presumption that the encroached plot is annexed to their lands and on termination of the lease the plot must be regarded as having accrued to the landlord’s reversion together with the demised premised. This applies whether the title of the dispossessed owner of the encroached plot is freehold or leasehold. The interest acquired is not a registerable interest. It is merely a right to remain in possession until the expiration of the lease. Evidence of a contrary intention on the lessee’s part may rebut the presumption. See King v. Smith (1950) 1 All E.R. 553 and James Battelle and Mary Pauline Battelle v Pinemeadow Limited, HC, Finnegan J, 9th May 2002.   See also Wylie’s “Landlord and Tenant Law” 2nd ed. Paragraph 28.11, “The Limitation of Actions” 2nd ed. by Brady and Kerr Pages 124-127, “Report of Title by Adverse Possession” LRC 67-2002.

7. Where the applicant claims in succession to others, he must show also who they were, how they acquired their interests and how their interests devolved to the applicant. All deeds, probates, assents, unproved Wills, etc., must be lodged, and full details provided of next of kin, heir at law (if relevant), and relicts of persons who died intestate or whose Wills are unproved. Deaths should be evidenced by production of death certificates. If he/she claims to have acquired some of those interests by adverse possession, the names and addresses of those against whom he/she claims should be furnished. State, also, the circumstances (e.g. emigration, marriage, hospitalisation or otherwise), of the departure of each such person from the property. [You are also referred to the notes to paragraph 2 Form 5 of the Schedule of Forms to the Land Registration Rules. 2012].

 8. State the names and addresses of all persons known to the applicant, who would, but for the Statute of Limitations, have any interest in the property or who might be concerned with the property in any way.

 9. Has the applicant or his/her predecessors ever paid any rent to any person in respect of the property? When was the last such payment made? State the name and address of the person to whom such rent was paid and the names and addresses of his/her successors in title and of his or their Solicitors or other agent acting for them in the matter.

10. If rent was paid under a tenancy agreement, was such agreement in writing? If so,  please lodge a copy of same. State the nature of the terms of the tenancy. How is it shown that such tenancy terminated?

11. Lodge a Certificate from the General Valuation Office records showing the occupiers and immediate lessors of the property from 1950, together with a map to which the entries on the Certificate or extract may be related. (A copy of the General Valuation Office Map is the most reliable map as the entries may be readily related to it. Alternatively, a letter from the General Valuation Office referring to an exhibited map and specifying the V.O. lot no. would be acceptable).

12. Explain any relationship of landlord and tenant appearing on the certificate and any notation thereon that differs from the applicant’s account of the occupation of the premises.

13. Say how the applicant acquired from each person appearing as occupier or immediate lessor on the certificate and state the addresses of any such persons whose interest has not been shown to have been acquired by the applicant other than under the Statutes of Limitations. In the case of any of them who are deceased, state the names and addresses of their representatives or successors.

14. Confirm, if such be the case, that the property was never subject to any proceedings under the Land Acts.

15. Confirm that the freehold of the property herein was not vested in the Irish Land Commission.

16. Please state the name and address of the current owner of the landlord’s estate. Is he/she a life tenant, a fee simple owner, or owner of some estate less than the fee simple?

17. Who were the original landlords of this area prior to the Land Purchase Acts? State the names and addresses of the present successors of such landlords. State the names and addresses of the present owners of any property formerly occupied by such original landlords.

18. Is the property securely bounded or fenced off from all adjoining property? When and by whom were the fences erected? What is the age, nature and condition of such fences?

19. What is the age, nature and condition of the buildings, if any, on the property? By whom and in what manner and for what purpose are they used?

20. Is the property part of a bog? Has any person claimed turbary rights on the property? Has peat ever been extracted therefrom for any purpose? Could peat be extracted therefrom?

21. State the names and addresses of the owners and/or occupiers of all land adjoining the property herein so that notice of the application may be served on them.

22. Has the applicant and his/her predecessors in title been living on the property since commencement of possession by them? Have any other persons been living on the property?

23. State the use to which the applicant and his/her predecessors have put the property. State what acts of ownership were performed by them, what use and enjoyment they made of the land and how such acts of ownership and use and enjoyment amounted to exclusive possession. Has the property been used by any other person for any purpose since commencement of possession by the applicant or his predecessor?

24. How, precisely, did the applicant, or his/her predecessor, take up possession of the lands? Describe the acts by them that constituted the taking of possession by them. When, precisely, was such possession taken?

25. How is it shown that the applicant had and continues to have and that the applicant’s predecessors had animus possidendi?

26. Has the property been acquired by the applicant or his/her predecessor for use in conjunction with other property in the applicant’s possession. If so, please indicate the location of such property and describe the applicant’s title thereto. The question of “encroachment” may require to be considered.

27. As the property or portion thereof was formerly a schoolhouse, there is a probability that it was held under a long lease. What information have you on this? Have you made enquiries concerning the existence of such a lease from the Department of Education, the Diocesan and Parish trustees and the Commissioners of Public Works? How is it shown that such lease has expired or otherwise determined? Was the school a Catholic or a Protestant school? Who were the trustees of such school? Furnish the names and addresses of the current successors of such trustees. How did the applicant acquire from them? Specify the Diocese and Parish to which the school belonged. State the name and address of the relevant Bishop, Parish Priest or Rector, Diocesan Trustees and Parish Trustees.

28. The land is described on the map as Woodland. Are there trees on the land? Who planted the trees? Has any timber been harvested? If so, when and by whom? State exactly what acts of ownership have been performed by the applicant and his predecessors.

29. Lodge all documents of title in the applicant’s possession of control relating to the property.

30. Lodge an Affidavit of Discovery in LR Form 16 of the Land Registration Rules, 2012, by the applicant.

31. Lodge a Verified personal search in the Judgments Office for any Lis Pendens, etc., for the past 5 years against the Applicant and any of the Applicant’s predecessors who were in possession or appear on the title during any part of the last 5 years.

32. Lodge a Common Search or Verified Hand Search on the Registry of Deeds, Index of Names only, for all acts affecting the lands by the Applicant and each of the applicant’s predecessors, from the day prior to the date of commencement of the interest or possession of each such person to the date of registration of the disposition of the interest of such person or the last day or the year in which such person died, or the latest date. (The description of the land in such search should include the name of the Townland, Barony and County in which the land is situate and, also, any additional or alternative name by which the land has been described. All alternatives of the names of persons searched against should, also, be specified in the searches.)

33. Explain any acts appearing on the above searches.

34. Lodge a certificate by the Revenue Commissioners pursuant to Section 62(2) of the Capital Acquisitions Tax Consolidation Act 2003 (formerly Section 146 of the Finance Act 1994) or, if appropriate, a solicitor’s certificate in the form prescribed by Section 62(7) of the Capital Acquisitions Tax Consolidation Act 2003 (formerly Section 128 of the Finance Act 1996.)