Adverse Possession - Title by Adverse Possession to Registered Land
Applications under Section 49 of the Registration of Title Act, 1964.
1.1. Section 49 Registration of Title Act 1964 Applications under Section 49 of the Registration of Title Act, 1964 are made under Rule 45 of the Land Registration Rules 2012, in LR Form 6. Particular attention should be given to the averments in LR Form 6 and the notes at paragraph 2 thereof in relation to the facts to be proved by applicant. All the information as set out in the said paragraph 2 of LR Form 6 must be included in the application. Such applications only relate to registered land.
For a list of frequently raised queries see Appendix A.
1.2. Squatter’s Title Applications for registration based on long possession and the operation of the Statute of Limitations are often commonly known as Squatter’s Title.
1.3. Acts commonly cited
- “the 1891 Act” – Local Registration of Title Act, 1891
- “the 1957 Act” – Statute of Limitations, 1957
- “the 1964 Act” – Registration of Title Act, 1964
- “the 1965 Act” – Succession Act, 1965
- “the 2006 Act” – Registration of Deeds and Title Act, 2006
- “the 2009 Act”- Land and Conveyancing Law Reform Act, 2009
1.4. Indemnity Where doubt arises in any case, consideration may, in consultation with the Chief Examiner, be given to obtaining an appropriate indemnity.
2. Adverse Possession
2.1. Possession Possession of land implies actual occupation of the land, and/or receiving the rents and profits out of lands and generally performing those acts of ownership in relation to the lands that are inconsistent with the interest claimed. Of necessity, this involves dispossession of the owner. The Irish Courts have interpreted this liberally in favour of the dispossessed owner.
Feehan v Leamy (2000) 1EHL 118 (29th May 2000) As to whether the defendant had dispossessed the plaintiff , on the evidence, Finnegan J. found that the plaintiff had not discontinued possession, in that having acquired the lands he enforced his entitlement to possession by seeking and obtaining interlocutory relief against the defendant
“The plaintiff here at no time had any cattle or other animals on the land and did not require same for grazing. The only use to which he put the land was to visit it on a number of occasions each year when he would park his car and, standing on the road or in the gateway, look over the hedge or gate into the same….Insofar as the plaintiff’s title is concerned the presumption is that it extends to the centre of the road and so when standing at the gate looking into the lands the plaintiff was in fact standing on his own lands….the plaintiff was exercising all the rights of ownership which he wished to exercise in respect of the lands pending the determination of litigation. I find as a matter of fact that he was not dispossessed.”
This contrasts with the concept of possession in the English case of J.A. Pye (Oxford) Limited 2002 AER page 895. Although agents of the dispossessed owner had attended at the lands, they had not entered on the lands and their presence in the vicinity or at the entranceway did not amount to possession as far as the House of Lords was concerned.
Accordingly, in circumstances where any acts with the property by the owner have been established , consideration is to be given to refusal of the application on the grounds that it has not been established as a matter of fact that the owner has been dispossessed. Such issue is properly a matter for the court and not the Land Registry.
2.2. Proofs These applications have been dealt with by the Land Registry since the coming in to operation of the Registration of Title Act, 1964, on 1st of January, 1967. Formerly, such applications based on long possession of registered land were made to the Court under section 52 of the Local Registration of Title Act, 1891, and the Court, following service of such notices as directed, if satisfied with the facts as disclosed by applicant made an Order declaring the title of applicant to be registered as owner of the lands on the appropriate folio and directed such registration to be made. See pages 95, 96 McAllister Registration of Title.
In applications for registration of ownership of land based on long possession the proofs formerly required by the Court in applications under Section 52 of Registration of Title, 1891, are applicable. It is accordingly essential to be clear as to the difference between adverse possession and non-adverse possession.
2.3 Animus Possendi This is the intention to possess the property and involves the intention to exclude the true owner.
Murphy v Murphy. It was held by the Supreme Court that for possession to be adverse it must involve the intention by the occupier to exclude the owner from the enjoyment of the estate or interest. The case is cited as authority for the proposition that, to succeed in a claim for adverse possession, it is necessary to show that the the true owner was dispossessed and that the squatter’s use and occupation of the lands was made with the intention of acquiring possession.
Feehan v Leamy (2000) 1EHL 118 (29th May 2000) In finding that the defendant did not have the necessary animus possidendi to dispossess the plaintiff Finnegan J. drew an analogy with the defendant in Leigh v Jack (1879) 5 Ex CA, citing the following passage of Cockburn CJ in at page 271; – I do not think that any of the defendant’s acts were done with a view to defeating the purpose of the parties to the conveyances: his acts were those of a man who did not intend to be a trespasser or to infringe another’s rights. The defendant simply used the land until the time should come for carrying out the objective originally contemplated.
On the balance of probability Finnegan J. found that the defendant’s state of mind was that litigation was pending and dragging on in relation to the lands which were lying idle and ungrazed. He had been a witness in that litigation and must have been aware of the proceedings. When questioned by gardai after an altercation with a fencing contractor in 1998 he said that the lands belonged to a man in America. This answer, he held, indicates to me the absence of the necessary animus possidendi – an intention to preclude the true owner and all other persons from enjoyment of the estate or interest which is being acquired.
Summarising he held: (the) defendant has failed to satisfy me on the evidence that he has dispossessed the plaintiff and also, insofar as he was in possession of the lands, that he was in possession of the same with the necessary animus possidendi.
When considering applications a stringent application of the above principles must be applied, i.e.
- that it is established by the applicant that the owner has been dispossessed and
- it is further established by the applicant that he had the necessary intention to preclude the owner.
The applicant should be put on strict proof of the above and where such principles have not been established consideration should be given to refusing registration.
The Statute of Limitations provides, at section 18(1):
No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
In Murphy v Murphy, (1980), IR 183, the words ‘adverse possession’ were held to mean simply that the possession claimed to be adverse must be inconsistent with the title of the true owner.
2.5 The intention of the true owner In England it was held some time ago that there could be no adverse possession despite the fact that the owner was making no present use of the land, if the owner had some future plans to use the land; Leigh-v-Jack (1879) 5 Ex. 0264, CA. It was held, per Bramwell J., ‘In order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it.’ Since then the decision in Leigh v Jack has been construed as the Court having laid down a special rule that a squatter cannot dispossess a true owner unless the squatter’s use of the disputed land is inconsistent with the true owner’s purpose for it.
This approach has been followed by the Irish Courts: Cork Corporation-v-Lynch (1995) 2ILRM 598; (property required for road widening); Dundalk Urban District Council-v-John Conway High Court Unreported 15th December 1987 (Council’s use of land to run sewer not affected by occupation of claimant) and, most recently, Feehan v Leamy, referred to supra.
Despite the view expressed in Durack v Considine, May 1987, IR 677, that it may be too broadly stated, the principle outlined in Leigh v Jack still applies in this jurisdiction.
Accordingly in circumstances where it has been established that the owner, while having no present use for the land, has a specific purpose in mind for its use in the future and if the ousted owner demonstrates that the use by the squatter or claimant is not inconsistent with their ultimate intention in respect of the property, registration is to be refused. Such issue is properly a matter for the court and not the Land Registry.
2.6. Equivocal Acts of Ownership Generally, it can be said that there is no adverse possession where acts relied upon are equivocal and not inconsistent with the enjoyment of the lands by the owners. The Courts in Ireland and England have in recent years considered several cases of equivocal acts claimed as adverse possession e.g. the grazing of cattle or other animals on lands is sometimes claimed as a ground for ownership of lands based on long possession. In Brown v. Fahy (1975) (unreported) High Court where Kenny J. held that the acts of possession relied on did not amount to adverse possession because they followed from the permissible grazing and were not inconsistent with the enjoyment of the lands by the owners.
So, although the squatter had remained in sole and exclusive occupation and possession, planted trees, built boundary walls, fences and hedges, had been in receipt of rents and profits occasionally from campers, the Court was of the view that the occupation of the lands was not adverse possession and that, in particular, the grazing of the cattle did not amount to to an act of adverse possession, it not being inconsistent with the enjoyment of the lands by the owner. This case reflects a view that grazing type user of land equivalent to user under an agistment agreement falls below the quality of user of the lands required to amount to adverse possession in the first place. Thus, where the acts of possession are consistent with permissible use by the applicant, registration is to be refused.
See also McEneaney v McEneaney 54 ILTR & SJ (short social visits); Milton v McCann and Kiernan 1951 H.C. unreported (in under right of residence).
2.7. Open; Unconcealed The possession which founds a claim of adverse possession must be open, unconcealed, and, it may be added, unequivocal (Convey v Regan (1952) I.R. 56.
2.8. Acts of possession Enquiries should be made regarding the age, nature and condition of fences, the nature and type of property and soil. The facts regarding all acts of possession exercised over each part should be sought as the occasion arises. These enquiries are necessary to support the general claims to possession, or in reply to an objection particularly in claims by strangers. Facts should be put on affidavit.
2.9. Awareness Kenny J in the Supreme Court in the case of Murphy V Murphy (1980) I. L. 183 quoted from Wylie’s Irish Land Law where it is stated: “It is also established that the adverse possession may take place without either party being aware of it”.
2.10 . Acts after acquisition of title. At page 43 of Lightwoods “Time Limit of Actions” (1909), it is stated that “provided that the new possessor has clearly occupied the premises, slight acts on the part of the previous possessor will not prevent the dispossession, if under the circumstances, they are explicable as being done by permission or in some other way not importing the continuance of possession.”
See paragraphs 3.4 and 3.5 for Acknowledgements.
Where it transpires from the application that there is serious doubt from the facts disclosed or from objections received that the applicant can substantiate his general claim to possession, he should be informed that the Registrar proposes to make an order refusing registration and that it is then open to the applicant to appeal against same to the Court under section 19(1) of the 1964 Act.
3. Statute of Limitations
3.1 In the absence of fraud, mistake or disability, a right of action for the recovery of land is barred following adverse possession by another for the duration of the statutory period.
Section 13(2) (a) of the 1957 Act , provides that this period is 12 years from the time of accrual of such right. However, the claims of persons entitled to the estates of deceased persons dying after 1st January, 1967, may be barred after 6 years under section 126 of the 1965 Act. This period is extended by a further period of 3 years in the case of shares of persons under disability (section 127 of the 1965 Act). But, legal personal representatives are not barred except after the full period of 12 years. See Gleeson v Feehan and anor, 1991 ILRM P. 783.
At the expiration of the period fixed by the 1957 Act the title of the person out of possession of the land shall be extinguished (section 24 of 1957 Act, section 49 of the 1964 Act), and is not revived by a subsequent acknowledgement (see page 9).
The land must be in possession of some person in whose favour the period of limitation can run. See section 18 of the 1957 Act. Such possession constitutes adverse possession(section 18(1)).
Time runs from the date the right of action accrues.
3.2. Reduction of the statutory period. The period of Limitation remained 12 years up to the 1st of January, 1967. From and after that date, under section 126 of the 1965 Act a beneficiary of a deceased owner in possession bars the other beneficiaries by 6 years adverse possession or in the case of persons under disability 9 years e.g. an additional 3 years from date of death or recovery of the person under disability. But a legal personal representative is not barred for 12 years. See paragraph 20.1.
However, it must be borne in mind that where the property being acquired is not part of the estate of a deceased owner, the period of limitation is 12 years and in the case of persons under disability the period is extended as provided in Chapter II of the 1957 Act. In other words, the application of the shortened period of limitation in Section 126 and 127 of the 1965 Act , applies only in the case of the administration of estates of deceased persons who died after 1st of January 1967.
3.3 Possession before vesting. An applicant may rely on occupation over the statutory period partly before vesting of the fee simple under the Land Purchase Acts and partly thereafter. See In re Greaney (1956) I.R. 226 over-ruling O’Regan v. White (1919) 2 I.R. 339.
3.4 Acknowledgement during the Statutory period Where an acknowledgement of title arises under the 1957 Act (sections 50 to 60), it must be such as to admit expressly or implicitly the title of the person to whom it is given.
An acknowledgement must be in writing (section 55).
An acknowledgement may be made by an agent to an agent (section 58).
The right of action shall be deemed to have accrued on the date of the acknowledgement (section 51). (Consider the question of animus possidendi?)
3.5 Acknowledgement after the Statute has run When the full limitation period has run no acknowledgement can revive any right on the part of the legal owner to recover the land. This hitherto accepted position could be read in the light of Colchester Burrow Council V Smith (1992) CH.421 (endorsed by the Court of Appeal).
Even though the statutory period had run an agreement, made in good faith and on legal advice, part of which contained an acknowledgement by the defendant that his possession of the land had been as a bare licensee or tenant at will, was binding and enforceable against the defendant.
See pages 112/113 of “The Limitation of Actions”, Brady and Kerr, 1994.
3.6 Social Visits Short social visits by those who left are not enough to prevent the statute running against them. See McEneaney v. McEneaney 54 I.L.T & S.J. 199; In re McCann (1966) 17 N.I.L.Q. 292; Sands v. Dooley 46 I.L.T.R. 197; and articles in 85 I.L.T.R. & S.J. at pp. 267 and 277.
3.7 Court Proceedings “Action” includes any proceeding in a Court established by law (section 2 of the 1957 Act) as amended by section 8(1) of the 2009 Act.
Where it is claimed that court proceedings have been commenced and that they prevent the operation of the Statue ask for a copy of the summons and seek confirmation that it has been served or renewed if it is in force for over 12 months. See Rule 8 of the Supreme Court Rules S.I. No. 15 of 1986.
A summons prevents the operation of the Statute of Limitations for 12 months without service. See “The Limitation of Actions” second edition by Brady and Kerr, 1994 page 10.
3.8 Vendor remaining in occupation after sale Section 14 (3) of the 1957 Act sets out that the right of action shall be deemed to have accrued on the date when the assurance took effect. However section 18 (1) of the same act sets out that no rights of action to recover land shall be deemed to accrue unless the land is in possession of some person in whose favour the period of limitation can run.
The period cannot run in favour of the vendor from the date of the assurance as s/he could not possibly have the proper animus possidendi.
Frequently applicants claim that after the sale they continued on in occupation. In these circumstances ask the applicant to lodge evidence to show that he/she has the animus possidendi or give the circumstances under which such could be inferred (either by physical alteration of the property or otherwise). It is more than likely that a vendor would have acknowledged and accepted the sale or transfer of title for a substantial period afterwards.
3.9 Leasehold and the Statute -See Chapter 16
3.10 Lost settlements and the Statute -See paragraph 5.8
4. The Application
4.1 A mere claim that the applicant has acquired title by operation of the Statute of Limitations is not of itself sufficient and should not be accepted. It is for the applicant to prove the facts on which he bases his claim and it is a matter for the officer dealing with the case to decide whether on the facts proved, the title sought has been established. Each case is to be considered on its merits in relation to adverse possession.
Applications under section 4 of the Registration of Title Act, 1964 are made under Rule 45 of the Land Registration Rules, 2012, LR Form 6. Particular attention should be give to the averments in LR Form 6 and the notes at paragraph 2 thereof in relation to the facts to be proved by applicant. All the information as set out in the said paragraph 2 of LR Form 6 must be included in the application. Such applications only relate to registered land.
4.2 Form 5 – paragraph 2 Set out the facts relied on in support of applicant’s claim
- Did the registered owner die testate or intestate?
- Was representation raised to the estate? If so, please lodge the grant . If not, any unproved will must be lodged.
- Describe how the occupation began and how possession was adverse – e.g
- Deliberate squatting with intention to acquire the property
- Taking possession as one of the next-of-kin of a deceased registered owner against the personal representative of such owner or other next of kin etc.
- Uses to which property has been put, acts of ownership
- Names and addresses of all parties entitled to the estate of the registered owner (including predeceased child or issue of predeceased child) under
- Statutes of distribution
- Succession Act
- Status of Children Act
- Adoption Acts
- Detailed history of persons against whom applicant claims to have acquired title and their successors
- Departures or dispossessions (precise time and circumstances, e.g. marriage, emigration, hospitalization etc.)
- Relevant deaths (proof of deaths required)
- Present Addresses in the State for service of notices (of personal representative, next of kin)
For a list of frequently raised queries see Appendix A.
5. Documentary Evidence
5.1. Proved Wills Where an applicant is a devisee under a Will of a registered owner and a grant has been extracted there is no adverse possession and an application under Section 49 of the Act should not be entertained.
Where Wills,of persons entitled subsequent to the registered owner, are proved and assents are lodged such Wills should be carefully read irrespective of the contents of the assents. Such assents are not to be accepted as vesting such estates as apply in relation to transmissions on death of a registered owner after 1st June, 1959. All such Wills should, accordingly, be examined and, if necessary, queried in relation to any estate interest, charge or burden not accounted for in the application on the basis that such transmissions are not transmissions in relation to the estate of a deceased registered owner.
Assents should generally be sought in all cases of proven Wills.
Where the applicant claims entitlement under a proven Will of a registered owner but without the assent of the executor who has since died:
- If the death occurred within 6 years, call for a D.B.N. Grant.
- if the death occurred between six and 12 years, refer applicant to section 61(7) of the 1964 Act and call for either a D.B.N Grant or an Order of the Court dispensing with raising of further representation and directing the Registrar to register the applicant.
- if the death occurred more than 12 years prior to lodgement treat as a Section 49 and proceed.
However consider proceeding without a D.B.N. Grant in cases of little value where the terms of the Will are accepted. Notice to persons who would have become entitled on intestacy should be considered.
Where the Will is of a person who has acquired title but who was not registered, consider, on the merits of a particular case, proceeding without raising the matters at (i) and (ii) above. Notice should again be considered.
5.2. Unproved Wills Generally speaking, the possession of the applicant must be “adverse possession”. In Moloney v. Moloney (1894) 58 I L T R it was decided that a person entering into possession under an unproved Will could not claim the benefit of the Statute “because it was apparent that the entry was intended to be made under the Will, which though it gave the land to the person entering did so subject to obligations some of which she had discharged and some including that in favour of the plaintiff (the administratrix under a Grant with Will annexed) she had not discharged”.
In practice, however, following the views of the late Judge Teevan in early cases under Section 49 which came before him unproved Wills can be accepted. However, where the claimant is a devisee under an unproved Will the devise is subject to charges for payments and other rights and reservations the affidavit should contain averments sufficient to dispose of such payments, burdens, etc.
Unproved Wills should therefore be carefully read as to their entire provisions.
Also, enquiry should be made as to the persons entitled on the death of the deceased registered owner as on his intestacy. Notices should then be served on all such persons. However, each case is to be considered on its merits. Fractional interests should be treated sympathetically and Grants to unproved Wills need not in general be called for. Different considerations would, of course, be required if an unproved Will created a Settlement as such.
Unproved Wills should only be accepted with occupation where such occupation is shown to be 12 years or over.
Consider in suitable cases that a will of real estate 30 years old from the date of the will, proves itself, if it has proper attestation and comes out of proper custody.
5.3. Lost Wills Ask applicant to make full enquiries, date custody etc. If the claim is to a substantial property ask applicant to go to court to establish the trusts of the Will.
If the claim is not substantial:
- Seek an affidavit stating the person in whose custody the last Will was last known to be ………….. I have caused searches and enquiries to be made in all places where the Will was likely to be, including Banks, Solicitors’ Offices and so forth to trace said documents, but have been unable to obtain any information as to their whereabouts and I verily believe the said Will has been irretrievably lost or have been inadvertently or accidentally destroyed. I refer to correspondence relating to such efforts to trace the missing Will upon which marked ……….. I have endorsed my name previously to swearing this application. In the event of the Will being subsequently found, I hereby undertake to lodge it in the Central Office of the Land Registry.
- Serve notice on all of those who would have become beneficially entitled on intestacy.
5.4. Deeds As the applicant or his predecessor in title enters the lands on foot of a Deed he must rely on the Deed and not on the Statute as such as his title thereto.
5.5 Possession on foot of Deed or Lost Deed When a Deed was lost an Order of the court was formerly necessary to declare the trusts of the lost Deed and direct registration on foot of same. Generally speaking, an applicant could not rely on 12 years possession since the date of the lost deed. (See re Registration of Peter Gallagher 45 I L T R 269 and Application of Patrick Foley 85 I L T R 61).
5.6. Where copy deed available. However, the Land Judge, Mr. Justice Butler in an application in 1974 for a direction to the Registrar of Titles on foot of a photostat copy of a Deed of Settlement of the lands in folio 3450 County Kilkenny referred to the decision of Madden J. in Re Gallagher 45 I L T R 269 and of Kingmill Moore J. in Nally v Nally and others (1953) I.R. 19 and other cases in point and stated that it was clear that it is the practice to receive in evidence and to act upon a copy of an original document which is shown to have been lost. In order to avoid the necessity of bringing formal applications before the Court in relation to lost deeds he directed that the Registrar of Titles should effect registration in any case where evidence on affidavit is produced which exhibits and identifies a copy of the Lost Deed and which clearly shows:
- That the original Deed was duly executed.
- That the parties to the Deed subsequently acted on it according to its tenor, and,
- That the original Deed has been lost or destroyed
- That it is also clearly shown that the original Deed was duly stamped. If not, the copy tendered must be stamped as an original.
5.7 Where no copy deed available. Consider the application of the 1957 Act to transferees if alleged deed is over 12 years old.
Where the applicant is claiming under a reputed lost deed, no copy or evidence of which is available, consider after exhaustive searches, notices and consents (if appropriate) proceeding with the registration on the basis that no such deed existed.
An affidavit will be required setting out all the searches and enquiries made to find the Deed, confirming that the Deed has not been deposited by way of lien for moneys lent or otherwise and that there is no claim by any person to its custody. Correspondence relating to the efforts to trace the Deed should be exhibited and an undertaking given to lodge the Deed if it is subsequently found. Usually a suitable indemnity under seal or insurance bond would be required. Again, occasionally, an advertisement should be directed in the Law Society Gazette and in a newspaper.
5.8 Lost Settlements and the Statute Applications are occasionally made against a person who was registered as limited owner under a lost settlement, by another person who continued in long possession following the limited owner’s death without knowledge of the terms of the settlement. In relation to lost settlements the practice is set out in Practice Direction – Lost Deeds. Applicant should accordingly be referred to the requirements of such Practice Direction.
See Practice Direction for Settlements destroyed in the Four Courts Fire of 1922. Where the Settlement was destroyed in the Four Courts Fire an application under Section 49 may be accepted where all avenues have been exhausted and all contingencies considered.
See section 19 of the Statute of Limitations in relation to a defective disentailing assurance which can be cured after 12 years in possession of any person other than some person entitled to possession by virtue of the Settlement. (See Counihan “The Statute of Limitations, 1957” at pages 26/27).
5.9 Contract for Sale Where the applicant has entered into occupation on foot of a contract for sale without a deed of transfer, the application may proceed if more than 12 years have elapsed.
6. Persons claiming Adverse Possession
6.1 The State as ultimate successor Where on the death intestate of the person entitled to a property dies leaving no next-of-kin and the State takes under section 73 of the 1965 Act, the State can waive its claim under that section.
In cases of this nature (which are rare) applicants should be referred to section 13(1) of the 1957 Act and section 73 of the 1965 Act, or the Administration of Estates Act, 1959, where applicable and that they take up the matter with the Chief State Solicitor or withdraw the application.
Occasionally once this matter is raised an applicant will make further efforts to locate persons entitled under the Statute of Distribution.
For possession against defunct companies, for not filing returns, see paragraph 20.5.
More information on the State as ultimate successor (Size 10456 bytes)
7. Adverse Possession claimed by Next of Kin or Legal Personal Representative (Intestacy)
7.1 Possession by next-of-kin pre Succession Act 1965 It is important that applicant sets out clearly the names of all those who became entitled to the estate of a deceased registered owner and their successors in title and their present addresses. In determining the claim to which persons became entitled on the death intestate of an owner see the table in Appendix C attached hereto setting out the comparison between claims on intestacy before 1st of January, 1967, and such claims after that date.
7.2. Possession by the Legal Personal Representative Formerly, the personal representative of a deceased owner who entered into possession acquired the shares of the absent next-of-kin and his co-squatters merely preserved their own original distributive shares. If, however, a co-squatter died and representation was not raised to his estate the personal representative and the other co-squatters would acquire the shares of the absent next-of-kin of the deceased co-squatter as joint tenants. (Re. In Ryan-Maher v. Harte Barry (1960) IR 174 and Ruddy v. Gannon, (1965) I.R. page 283).
See also Fagan v. MacParland (1997) 28 N I L Q 201 referred to in Wylies Land Law p.76.
7.3. Gleeson V Feehan The position of the legal personal representative, rights arising on death intestate and right of those in possession after death were fully considered by the Supreme Court in Francis P. Gleeson v. Donal G. Feehan; Francis P. GleesonvV. Francis Purcell (1997) 1LRM page 522 Supreme Court 1996 No. 14. Death occurred prior to the coming into the operation of the Succession Act 1965.
Arising from the decision the L.P.R. of one of two joint tenants who died failed to recover his assets on a grant extracted after 11½ years as these assets went to the survivor.
The following matters are concluded from the case:
(i) Legal Personal Representative The Court took into account that section 10 (1) of the 1965 Act sets out that real and personal Estate (legal and equitable) of a deceased person shall vest in the Legal Personal Representative on death and under S.13 in the case of a death Intestate or Testate without an executor the real and personal estate shall vest in the President of the High Court until administration is granted.
The Legal Personal Representative as trustee now holds all legal and equitable estate (if such distinction has to be made) for those eventually entitled. Hitherto the Legal Personal Representative merely held the legal Estate. However s/he is not an express trustee.
(ii) Chose in Action Persons entitled to the estate of an intestate do not have equitable interests in the intestate’s property. The Court found that a next of kin has a right in the nature of a Chose in Action enforceable against the Personal Representative. Next of kin have no proprietorial interest in land legal or equitable. They have no entitlement to possession of land comprised in the Estate (regardless of whether they were in occupation of the land at the time of the intestates death).
(iii) Extinguished Title Subsequent grant of letters of administration will not revive an extinguished title.
(iv) The co-ownership of those in possession The Court confirmed the finding of Maher V. Maher 1987 1LRM 582 (High Court) that persons in possession acquire as joint tenants their own shares and the shares of those who leave.
(v) Persons in occupation at death – strangers The Court accepted that there was no suggestion in facts as found in the case stated that the occupation of a person, who was not a member of the family in the strictly legal sense, was any different in character to that of a member of the family in occupation.
Arising from this acceptance all persons going into possession including wives, husbands, children, grandchildren, nephews, nieces and total strangers may be regarded as strangers and if they go into adverse possession they do so jointly. However there maybe some other legal explanation for the possession of any such persons and inquiries should be made in suitable cases.
Even though persons in possession take as joint tenants, notice must be served in the normal way (see paragraph 24).
In suitable cases ask if the applicant is the only person in possession quoting Gleeson V. Feehan and to ask specifically if any other person, for example, a spouse, was in possession at the date the adverse possession commenced. Marriage after the adverse possession commence would not make the spouse entering into possession an adverse possessor. He/She would be an invitee.
7.4. Post Succession Act 1965 – Section 125 Section 125 of the 1965 Act provides that after the 1st of January 1967 where each of two or more persons is entitled to land comprised in the estate of a deceased person and enter into possession they are deemed, for the purposes of the Statute of Limitation, to have entered as joint tenants in respect of all interests, and whether or not any is a legal personal representative.
This is so despite section 10(1) of the 1965 Act which vests all real and personal Estate in the legal personal representative (Legal and Equitable).
The Supreme Court in Gleeson v Feehan and Purcell 1997 1 LRM p. 522 found it “unnecessary to determine whether the section proceeds upon the mistaken assumption that the next-of-kin in possession are entitled as of the date of death to an equitable interest in the property or whether it is simply directed to the nature of their co-ownership of the land at the stage when, by virtue of adverse possession, they have acquired title to the land”.
After the coming into operation of the 1965 Act, the intention of the section is quite clear that all those in possession, even those who have taken out a grant, are in joint adverse possession if the Statute of Limitations is pleaded.
8.Trusts and Possession by Legal Personal Representatives
8.1. Express Trustee It has long been established that an express trustee cannot claim the benefit of the Statute of Limitations. A trustee cannot bar the beneficiaries’ interests in the circumstances of section 44 of the 1957 Act. A beneficiary cannot bar his trustee or other beneficiary in the case of settled land or land held on a trust for sale. Section 25(4). A stranger can bar both the beneficiary and the trustee section 25(2).
Extended meaning of “Express Trustee”. See the commentary of Desmond P. Counahan LLD on Soar v Ashwell 2QB 390 at p 396 in the Statute of Limitations 1957 Modern Law Publications published by the Incorporated Law Society.
Note: Part 4 of the 2009 Act repeals the Settled Land Acts 1882-1890 and simplifies the ways in which settlements are created. A statutory trust replaces trusts for sale and settlements. Section 19 of the 2009 Act sets out who are the trustees of land in the case of each type of trust under section 18 of the Act.. The legal estate at all times vests in the trustees and the register will reflect that. It is no longer possible to register a person entitled to a life interest or a minor, and the trustees of the settlement are the registered owners. Any adverse possession in such cases will now be against the trustees, rather than for example on the termination of a life interest, against the remainder interest. Time runs against the trust when the trust comes into operation under Part 4 of the Act be it registered or unregistered land.
8.2. Bare Trustee – Sale Vendor may be a bare trustee only if the purchase money or part thereof had been paid. Note section 52 of the 2009 Act that the entire beneficial interest passes to the purchase on the making of an enforceable contract (reversing the majority view on Tempany-v-Hynes which held the view that it only passed to the extent that the purchase money was paid). Where the applicant has entered into occupation on foot of a sale with or without a contract and without a deed of transfer, the application may proceed if more than 12 years have elapsed. Ask the applicant for all the evidence of the sale in existence, e.g. correspondence, receipt etc. The evidence will determine the extent of the trust and notice to be served.
Where settled property is occupied by a stranger to the trusts he cannot bar the trustee’s title until the cestuis que trust are also barred in succession. See Section 25 as amended by the 2009 Act to delete any reference to Settled Land Acts, and section 15(5) of 1957 Act and Parts 2,3 and 4 of the 2009 Act. (See Counahan “The Statute of Limitations, 1957” at pages 28/29).
See also Bellew – v – Bellew I.R. 447
Under Part 3 of the Act all future interests whether vested or contingent exist in equity only. The legal title will vest in the trustees to be held in trust for the beneficiaries. The rules against perpetuities and other cognate rules abolished under section 16 of the 2009 Act.
8.3. Possession by legal personal representatives
(i) Formerly – Not an express trustee – an express trustee The position of personal representative in relation to the Statute of Limitations has changed radically in recent years. Originally, the personal representative was not an express trustee of chattels real of a deceased. It was later considered, however, that section 86(1) of the 1891 Act, constituted him an express trustee of the registered property of the deceased that vested in him (See Toates v. Toates (1926) I.K.B. 30). This case was followed in the Irish Courts in re Loughlin (1942) IR 15 and so a personal representative could not claim the benefit of the statute.
This principle was continuously modified by the Court – Mallon v. McAlea (1923) 1 IR 30 McNeill v. McNeill 1957 N.I. 10. In re Ryan-Maher v. Harte Barry (1960) I.R. 1974 Vaughan v. Cottingham (1961) I.R. 184 and Ruddy v. Gannon 1965 I.R. 283
(ii) Not now an express trustee In Vaughan v. Cottingham, (1961), the Supreme Court decided that a personal representative was not an express trustee for the beneficiaries in relation to registered land and consequently s/he could as trustee bar the beneficiaries by 20 years adverse possession by virtue of section 13 of the Law of Property Amendment Act, 1860.
The position is confirmed in the section 123 and 125 of the 1965 Act.
(iii) From the 1st of January, 1959 to the coming into operation of 1965 Act, a personal representative could bar the beneficiaries of either registered or unregistered land by 12 years adverse possession ending on any date after 1st January, 1959, e.g. if he had 16 years adverse possession prior to 1st January, 1959, the beneficiaries became statute barred on 1st January, 1959. The 1957 Act came into operation on the 1st of January, 1959.
The period of Limitation remained 12 years up to the 1st of January, 1967. From and after that date, under section 126 of the 1965 Act, a personal representative of a deceased owner bars the beneficiaries by 6 years adverse possession or in the case of persons under disability 9 years e.g. an additional 3 years from date of death or recovery of the person under disability.
Where the property being acquired is not part of the estate of a deceased owner, the period of limitation is 12 years.
9. Rights of Widow/Widowers
9.1. Legal Right Legal right of widow/er arising under the Succession Act 1965.
When dealing with the estates including the estate of a person who was entitled by long possession to be registered as owner, consider the legal right of the widow under section 111 of the 1965 Act and the procedure of election by her/him under section 115.
Where a surviving spouse has not renounced his/her legal right and is not provided for in the will, or a devise to the spouse is expressed to be in addition to the legal right, the beneficial entitlement to the legal right share vests automatically – Re Cummins; O’Dwyer v Keegan 1997 2 ILRM. 401. Thus, in the case where no election is required the right to receive the share would accrue at the date of death and be barred after 6 years (section 126 of the 1965 Act).
Where the spouse is in receipt of a devise or legacy simpliciter he/she has a right of election pursuant to section 115 of the 1965 Act. The right of election is not exercisable after the expiration of 6 months from the receipt by the spouse of notification by the Personal Representative or 1 year from the taking out of the grant of representation to the deceased’s estate whichever is the later (section 115 (4)).
See a discussion on Section 111 and 115 in “In the Matter of the Estate of R.H.H. Deceased between S.T.S – v – M.E.H. and Others”, Unreported 12th March 2010.
- Where application is made for registration of a site, on foot of a transfer from the personal representative of a person entitled to be registered, pursuant to an appropriation under section 55 of the 1965 Act, ask Solicitor for an affidavit along the lines of LR Form 34 together with a copy of the notice served under section 55 of that act. If no such notice has been served the Solicitor should be informed that the application is premature and should be withdrawn and re-submitted when the Section has been complied with and the deed re-executed by the personal representative.
- If the application does not deal with the right of the surviving spouse to require the dwellinghouse to the appropriated, make enquiry.
10. Adverse Possession by Spouses
10.1 Desertion Generally speaking, a person cannot be in adverse possession to his or her spouse. This situation brings out more clearly the distinction between adverse and non-adverse possession e.g. where a husband and wife separate or where one deserts another. In Keelan V. Garvey (1924) 1 IK. 107, 173, 1952, I.I.R. 1 a husband deserted his wife, it was held that the wife had been provided with residence and support on the lands and was in occupation there jure mariti, and therefore, was not in fact in adverse possession to her husband.
All such cases must be considered on their own merits and the Courts have so decided these cases rather than set down a general principle to be applied. See the following cases as quoted in McAllister “Registration of Title” at pages 83/84 viz. In re. Michael Daly (1944) N.I.; In re. McCann deceased noted in (1996) 17 N I L Q 292; In re Downey 80 I L T R 44; Milton v McCann and Kiernan (High Court on Circuit 7th March, 1951). Murland and another v Despard and another (1956) I.R. 170 and O’Shea v O’Shea 100 I L T R 16. Sands v Dooley 46 I L T R 197. See also articles in 85 I L T R pages 267/77.
These cases are now generally dealt with in the Land Registry.
Our present practice commenced when the Registrar refused registration of a widow of a registered owner, her late husband, who had deserted her. On appeal the Land Judge, on the facts and evidence of the particular case, decided in favour of the widow of the deceased owner as against one of the next-of-kin who opposed the application.
It is essential that the address of all parties affected should be obtained for service of notice.
We now regard the Statute as commencing to run at some event that changes the character of possession. For example, the deserter may indicate that he has no intention of returning. Ask the applicant for date and circumstances of the leaving by the deserting party, the communication and correspondence between the parties since the leaving particularly that relating to the property and any acts on events that would show that the statute began to run. It was inferred that the statutory period of limitation began to run when a deserted wife obtained a maintenance order. In re Downey 80 1 L T R 44.
Notice should be sent by registered post. If address of the deserting spouse is not available ask the applicant to set out the efforts made to locate it, local enquiries, enquiring abroad etc.
Consider a newspaper advertisement, even in another country, the newspaper with the greatest circulation in the area.
Bear in mind that the deserting spouse may have non-marital children, who are now entitled under the Status of Children Act 1987.
Children in possession have as good a claim as their mother/father in possession.
11. Adverse Possession claimed by Children
11.1. Child in Possession See re McGann (1966) N I L Q Vol. 17 a case where a son remained in possession on the death of registered owner and married on the lands – held that although the son and wife worked the lands jointly the son was held to be entitled. See also Sands – v – Dooley (1912) I L T R and articles in I L T R of 3rd and 10th November 1951. See also McAllister on Registration of Title at p. 93. Also article “Adverse Possession of Registered Land” by Herbert Wallace, N 1 L QVol. 32, No. 3, P. 254 (Autumn 1981) The decision in Gleeson v Feehan and Purcell 1997 ILRM P. 522 opens the way, in suitable cases depending on the facts to regard children and grandchildren as being in equal adverse possession with their parents or grandparents. Further enquiries should be made in these cases and notice should be served.
11.2. Status of Children Since the Status of Children Act 1987 all children are beneficially entitled.
11.3. Husband, wife and children into possession as strangers to the title Where the applicant is a complete stranger and went into occupation with his wife and family, consider the occupation to have been by the husband and wife but not by the children.
12. Persons under a Disability: Bailiffship
12.1. Disability Infants and persons of unsound mind are under disability per section 48 of the 1957 Act. A person must be under disability when the right of action accrues. Section 49(1)(a) of the 1957 Act. An additional period of 6 years is given from the date the disability ceases or death. This has been reduced to 3 years for claims coming within section127 of the 1965 Act claiming to estate of a deceased person whether under a Will, or intestacy or as a legal right.
the person of unsound mind had left the lands to live elsewhere and has become a person of unsound mind when the interest arose, it would appear that the relevant period may be 30 years (section 49 of the 1957 Act),
the person of unsound mind had left the lands before the interest arose and became a person of unsound mind after the interest arose – the period is 12 years or 6 years as the case may be, he not being under a disability at the relevant time.
If an interest is not barred omit it from the registration with consent of the applicant without notice. In such circumstances, registration should be made as to the shares acquired by the applicant and the former ownership on the folio should be amended to show the remaining shares in the lands.
It may be necessary to get evidence on affidavit from the resident medical director or other specialist that a person is in fact of sound mind.
After the death of a person of unsound mind serve notice on the next of kin (of the person of unsound mind) on the ground that the statute has run.
12.2 Bailiffship Possession as bailiff is possession on behalf of another or as trustee of another.
12.3 Occupation by Bailiff – Pre Succession Act 1967 Where a person enters into possession of land in a fiduciary capacity the doctrine of “once a bailiff always a bailiff” applies. Rice v. Begley (1920) 1 I.R. 243 and 54 I L T R 209: McMahon v. Hastings (1913) 1 I.R. 395; Leonard v. Walsh (1941) I.R.25. See also Moloney v. Moloney 58 I L T R 81 and re. James McGee (1964) in Jur. Rep.26. See McAllister at pages 80-82 on “Registration of Title”. S.48 and 49 of the 1957 Act.
12.4. Unsound Mind The case of Leonard v. Walsh is of particular importance in so far as it relates to a person under disability (being a person of unsound mind). A number of next-of-kin of deceased registered owners who were together in process of acquiring the shares of the other absent next-of-kin, did not acquire the share of one of those in possession who became of unsound mind and had been removed to a Mental Hospital. The next-of-kin in possession were also regarded as bailiffs for the person of unsound mind and who was held to be entitled to share in any rights ultimately established apart from his own original distributive share in the estate.
Regard bailiffship as arising where:
- The person of unsound mind was on the lands at the time the interest arose and he subsequently left for the Mental Hospital – Leonard v. Walsh;
- the person of unsound mind was in the Mental Hospital at the time the interest arose, having previously gone there straight from the family home.
Regard bailiffship as not arising where:
- the person of unsound mind had left the lands to live elsewhere and has become a person of unsound mind when the interest arose. In this case it would appear that the relevant period may be 30 years (section 49 of the 1957 Act);
- where the person of unsound mind had left the lands before the interest arose and became a person of unsound mind after the interest arose – the period being 12 years or 6 years as the case may be, he not being under a disability at the relevant time.
12.5. Post Succession Act 1965 Section 124 of the 1965 Act, abolished the doctrine of bailiffship with regard to the Estates of deceased persons who died after 1st January, 1967. (See section 9 of the 1965 Act).
It is not clear as to how the Courts would decide the case on similar facts where the person of unsound mind in fact remained in possession after his right accrued and was later removed to a Mental Hospital.
If an interest is not barred omit it from the registration with consent of the applicant without notice. In such circumstances, registration should be made as to the shares acquired by the applicant and the former ownership on the folio should be amended to show the remaining shares in the lands.
It may be necessary to get evidence on affidavit from the resident medical director or other specialist that a person is in fact of sound mind.
12.6. Minors In the case of minors, the question of Bailiffship should be considered if raised by way of objection. Part 4 of the Act applies and a trust comes into effect.
13. Persons in possession of foot of rights
13.1. Persons in possession on foot of rights A person who claims the benefit of the Statute and who has already rights over the lands, e.g. rights of residence, support, etc. out of lands, whether registered or unregistered which may have been created by Deed or Will, does not acquire title by adverse possession e.g. rights or residence, support, etc. out of lands. See Milton v. McCann and Kiernan a decision of the High Court on Circuit dated 7th of March 1951, noted in McAllister at page 84. Such persons are regarded as never in possession of more than they are legally entitled to.
However consider registration, where it is shown that the annual value of the right etc. did not exhaust the rents and profits or annual value of the land, – where the surplus was retained by the applicant.
13.2. Our practice should be as follows:
(i) Application before lapse of 6 years from death. Persons out of possession for less than 6 years, whether personal representatives or not, are not barred.
(ii) Application between 6 and 12 years after death.
- Applicant in possession with a grant. Generally request an assent, or
- Applicant in possession but grant taken out by a person out of possession. Seek an assent where the deceased is not the registered owner, serving notice on all persons entitled under the Succession Act, adding to the notice that an assent has been executed.
- Seek a grant and assent – See (i) above, or
- Ask applicant to withdraw the application. The application may be re-lodged after the lapse of twelve years, or
- If a Court Order dispensing the applicant from the necessity of raising representation, and ordering the registration of the applicant under section 61(7) of the 1964 Act is lodged, this may be accepted, or
- If the estate has little value at the date of death seek attested written consents of those who are entitled under the 1965 Act to the registration of the applicant. Seek the value from the Solicitor.
(iii) DBN Grant or Court Order
Where the personal representative is dead or out of the jurisdiction refer the applicant to section 61(7) of the 1964 Act and call for either a D.B.N. Grant or order of the Court dispensing with raising of further representation and ordering the registration of the applicant.
14. Possession claimed by successive squatters
14.1. Successive Squatters Successive squatters can between them make up the full statutory period (see Asher v. Whitlock 1865 L.R. 1 Q.B.1), e.g. if A is in possession for three years and transfers to B who enters and continues for nine years B acquires. However, in the absence of a Transfer, B could only rely on his own possession.
Where occupation occurs after the coming into operation of the 1965 Act, i.e. after 1st January, 1967, the same principle would apply. A purchaser who takes from a person in sole occupation and enters into occupation following the sale would appear to acquire under section 126 of that act. Back to top
15. Diocesan Property, Parochial, School Premises, Sports Grounds
15.1. Claim by Trustees to registered trust or non-trust property. Applications are made occasionally in relation to certain properties which were originally vested in or purchased by trustees, whether diocesan, parochial, relating to schools or local sporting or cultural associations, etc. They may one way or another be regarded as property held on charitable trusts. It is usually desired to establish the title of the current trustee(s) to such property who may also desire to dispose of such property. Generally, such applications are not properly brought under section 49 of the 1964 Act as there is not, in fact, adverse possession. The trustees and their successors are presumably in occupation of such property jure officii – by virtue of the fact that they are in occupation in their capacity as trustees in succession to their deceased predecessors.
It would be preferable in such cases to refer applicant to the provisions of section 14 of the Charities Act, 1973, whereby the Charitable Commissioners are empowered to vest such properties in the persons who now appear to be the trustees.
It may be however possible that adverse possession is claimed against the landlord of these trustee owners or against some other persons.
In the case of school properties it is advisable to make enquiries from the Department of Education and the Commissioners of Public Works.
Generally, such cases should be considered with due caution and the officer will require to use discretion as to what evidence of title is acceptable before proceeding.
Seek the up to date position regarding the trustee or bodies that might now represent the registered owner. Occasionally a trust will be seen on the registered title.
15.2. Legal requirements in respect of the applicants. Where application is made by a trustee of a voluntary body or by a statutory group insure that the body is in legal existence for the statutory period and that it has legally valid provisions for the holding of property. Generally evidence of meetings setting up the body and adopting the constitution and rules and appointing trustees should be sought and examined.
Applicant legal bodies or trustees may have in fact been set up or appointed under statute, e.g. the Industrial and Provident Societies Act 1893 or the Irish Church Act 1869.
16. Leasehold Tenancies, Enroachment, Reversion
16.1. Acquisition of Leaseholds It is accepted that title by adverse possession may be acquired to leasehold registered land having regard to the Judgment of Walsh J. in Perry v. Woodfarm Homes Ltd., 1975, I.R. 104.
In an obiter dicta, Walsh J. expressed the following view in relation to registered land having regard to section 49 of the 1964 Act;
“This would appear to permit in the case of a squatter who has dispossessed a registered leaseholder where registered land is concerned to have himself registered as owner of the leasehold”.
Accordingly, in so far as an application relates to registered leasehold land the applicant can be registered as owner under section 49 of the 1964 Act. Such registration is without prejudice to any right not extinguished by the possession (Section 49). See also Spectrum Investment Co. v. Holmes (1981) 1 WLR 221.
The matter is now clarified as a result of the 2006 Act, section 50 amends the definition of a “leasehold interest” in section 3 of the Registration of Title Act 1964 to read “the right or interest of a person who has barred under the Statute of Limitations 1957, the right of action of a person entitled to such leasehold interest”. This applies to both registered and unregistered land.
16.2. Registered title – the reversion A third party may acquire the reversion under section 17(3) of the 1957 Act, which provides that a landlord may be barred by a third party who wrongfully claims the reversion and who continues to receive the rent from the tenant, if thereafter no rent is received by the landlord. This section is, however, confined to a lease in writing which reserves a conventional rent of at least one pound. Section 17(3) cannot, however, be relied upon against a state authority.
16.3. Registered title subject to a lease A claim to the registered freehold subject to a lease by a third party cannot succeed as the freeholder is not entitled to possession during the currency of the lease.
By non-payment of rent neither the lessee nor his assigns can acquire title to the reversion.
16.4. Possession of unregistered leaseholds – lease registered as a burden A lease may be registered as a burden on the freehold folio but a leasehold folio may not have been opened. The interest acquired by long possession against the unregistered lessee on his/her successor is merely a right to remain in possession until the term of the lease has expired. The applicant may have only squatted against the leasehold interest and as such is only entitled to the right to the lessee’s interest, an interest which was not capable of registration, not being a leasehold interest as defined under section 3 of the 1964 Act.
However, section 50 of the 2006 Act, amends the definition of a “leasehold interest” in section 3 of the 1964 Act to read “the right or interest of a person who has barred under the Statute of Limitations 1957, the right of action of a person entitled to such leasehold interest” and effectively overturns the decision in Perry v Woodfarm Homes.
The case of Perry v. Woodfarm Homes Ltd. Decided by the Supreme Court is analysed and commented on at paragraphs 23.15 to 23.18 of Wylie “Irish Land Law”.
16.5. Tenants at Will – Non payment of rent; licence If the tenancy is in writing there is no adverse possession. Section 17(2) of the 1957 Act does not apply.
Otherwise see section 17 of the 1957 Act and Sauerzweig v. Feeney Supreme Court 1985 N301. Under section 17(1) of the Statute, the title of the owner is extinguished at the end of 13 years from the date when such tenancy began the right of action being deemed to have accrued at determination of the tenancy unless meanwhile there has been an acknowledgement. This provision does not apply to a state authority.
To decide if an agreement is a tenancy at will or a licence, the proper test to apply is “what was the intention of the parties”. See Hughes v Griffin 1969 M.E.R.
A County Clare case where the intention of the parties was that the widow of a former employee could remain in occupation during her life, twelve years after her death, the son had acquired a good title.
Vendor remains on See paragraph 3.8 for requirements where the vendor remains on after sale and the vendor claims. Such cases are not rejected on the basis that the purchaser had no immediate purpose or use for the land.
16.6. Tenant by sufferance This tenancy arises when a tenant has obtained possession under a legal title initially and then retains possession without leave express, implied or statutory after his tenancy has ended. Time runs in this case from the very beginning of such tenancy and the owner will be barred in 12 years from that time.
16.7. Other periodic tenancies Section 17(2) of the 1957 Act provides for such tenancies e.g. lettings for week to week, month to month, year to year, etc. the position is the same as a tenant at will. Time runs in favour of such tenant holding under verbal tenancy from the end of the first period – week, month, year etc. and the owner will be barred after 12 years from that time in the absence of a payment of rent or written acknowledgement previously given. Where such a periodic tenancy rest on an agreement, section 17(2) does not apply and time does not run against the landlord (owner) until the end or determination of the letting. See in Re. Shanahan (Supreme Court) Judgement of O’Dalaigh C.J. dated 5th July 1968. See also Sauerzweig v Feeney (1986) I.R. 224.
16.8. Encroachment: Once it appears an applicant may have encroached enquiry should be made as to the title to his/her own property. Where a tenant or lessee encroaches on land adjoining on applicant’s lands there is a presumption that the encroachment is annexed to his lands and on the termination of his lease it must be regarded as having accrued to the landlord’s reversion together with the demised premises. Evidence of a contrary intention on the lessee’s part may rebut the presumption. (King v. Smith (1950) 1 All E.R. 553). See D.R. Counihan “The Statute of Limitations, 1957” pages 23/4 and Hill and Redman “Land of Landlord and Tenant” 13th Ed. Pages 260/1.
17. Caretakers Agreement or Licence; Legal Agreements; Oral Family Agreements; Permission
17.1. Caretakers agreement rent or licence Where the applicant is in occupation under a written caretaker’s agreement or license examine same to ascertain if Statute ever commenced to run. If not in writing, the onus of proving same is on the objector. Personal agreements or licenses end with the death of either party. Where the existence of oral agreements or licenses are claimed, on affidavit by objector, consider refusing the application on grounds of conflicting averments in affidavits. See commentary on Colethurst v O’Leary, a District Court case of May 2004, in the Law Society Gazette, Aug./Sep. 2004.
17.2. Oral Family Agreement In the case of a claim that there was an oral family agreement ask for an affidavit from the objector. Consider refusing registration if a contrary claim on affidavit is made by the applicant.
An oral personal agreement ends on death of either party.
17.3. Inference of a Licence Costello J. in the High Court in Murphy V Murphy (1980) I.R. 183 affirmed by the Supreme Court pointed out that “the inference of a licence is one that may be obtained more readily where the relationship is a family one”, referred to in “The Limitation of Actions” by Brady and Kerr (1994), second edition at page 98.
17.4. Permission If occupation is by permission there is no adverse possession. If it is admitted that the occupation is with permission there is no adverse possession. Ask for the circumstances from which permission can be inferred.
18. Releases, Consents, Transfer, Disclaimers by Other Parties
With regard to interests arising on death releases may be accepted. Attested consents consenting to registration of applicant free from the rights of such parties may be accepted also.
18.2. Rights Arising on Death In Gleeson V Feehan  1 ILRM 522 at page 531 Keane J in summing up quoted the Lord Chancellor, Lord Cairns, that “it was perfectly clear that, whatever the nature of the right of a residuary legatee or next of kin might be, it was beyond argument that it was a right which was capable of being released or assigned”.
In view of Gleeson v Feehan, formal releases of a property interest need no longer be sought in the case of an interest arising on intestacy or under a residuary interest in a will, where the residue has not been ascertained. As no vested proprietorial interest accrues to those entitled on intestacy releases of shares or interest are not necessary. An attested consent to the registration of the applicant free from such a right or a release from or discharge of the chose or action will suffice. If a formal document is lodged without having been submitted to the Stamp Duty Office it should accepted if it contains the certificate provided by the Finance Act 1999. This act inserts a new schedule to the Stamp Act 1891.
However, a formal release or transfer should be sought of a legal right share or of a specific devise in a will. A legal right share under the 1965 Act is vested. See O’Dwyer v Keegan; In re. Cummins deceased  2 ILRM 401 Supreme Court. These interests vest on death. If the interest is of little value an attested consent may be considered.
18.3. Disclaimers Disclaimers (sometimes referred to as Waivers or Renunciations) are acceptable on testacy. In relation to disclaimers on intestacy section 6 of the Family Law (Miscellaneous Provisions) Act 1997 (enacted 5th May 1997) inserts a new section 72A into the 1965 Act as follows:
“Section.72A – where the estate, or part of the estate, as to which a person dies intestate is disclaimed, after the passing of the Family Law (Miscellaneous Provisions) Act 1997 (otherwise than under section 73 of this Act) the estate or part, as the case may be, shall be distributed in accordance with this part –
(i) As if the person is not the spouse or a direct lineal ancestor of the intestate,
(ii) If that person is not the spouse or a direct lineal ancestor of the intestate, as if that person had died without leaving issue”
The effect of disclaimers post 5 May 1997 is to be carefully considered and the direction of the Deputy Registrar sought where necessary.
18.4. Handing Over A deed of transfer will be necessary where it is claimed that a person who is solely entitled “handed over” the property to the applicant or where such a person is agreeable to the registration of the applicant.
- A brother and sister have become entitled as joint tenants under section 126 of the 1965 Act, the brother dies leaving a widow and children and the sister is agreeable to the registration of one or more of her brother’s family;
- A daughter who is entitled to the property marries, her husband predeceases her and a son applies for his registration;
- A father/mother who is entitled to the property informally “hands over” same to his son (who applies for his registration) and has not left the land or continues in receipt of maintenance or other benefit.
18.5. Legal Advice It may be necessary or desirable to obtain evidence that the person consenting, releasing, transferring or disclaiming has been independently advised. Where it is claimed that the person does not wish to be independently advised, an affidavit to that effect should be requisitioned.
18.6. Assents Where the applicant is the personal representative of a deceased owner who was not registered owner but entitled to be so and the LR Form 6 does not contain an assent to his /her registration nor an averment that the debts funeral and testamentary expenses have been paid, same in suitable cases may be requisitioned.
If the documents contain an alternative proper assent in writing vesting the property in the person entitled do not insist on one in the form appropriate of a death prior of 1959.
The decision in Mohan – v – Roche 1991 IR Vol 1 p.567 is to be noted. It provided that a D.B.N. Grant was not required where a personal representative entitled to property died without executing an assent. Her personal representative was then entitled to sell without a D.B.N. Grant. This decision may be applied to registered land in Section 49 cases.
19. Partial of Joint Interests
19.1. Acquisition of a partial interest or share. No application under Section 49 should be accepted for registration of a partial interest in property as such under the Statute. It may transpire from an application that only a particular share or shares are registerable. In such circumstances, registration should be made as to the shares acquired by the applicant and the former ownership on the folio should be amended to show the remaining shares in the lands.
19.2 Joint tenancy/tenancy-in-common. If applicants are entitled to some shares as tenants in common and others as joint tenants they can agree informally to take the property in either a tenancy in common or jointly. If, however, it is clear in law that they are tenants in common or joint tenants, they must enter into a formal settlement.
A joint tenancy may only be severed with the consent in writing of the other joint tenant(s) (section 30 of the 2009 Act) unless the consent is dispensed with under section 31(2)(d) of the 2009 Act.
Equity will infer an agreement to sever from the conduct of the parties.
19.3. Joint Acquisition Where applicant for registration as full owner has acquired title by possession with others formal stamped releases are necessary if one or some of the joint owners apply/applies.
20. Adverse Possession claimed against
20.1. Claims against the legal per rep or potential LPR It is of great importance to ascertain who is the personal representative of a deceased owner and also who is the personal representative of any of the persons who entered into occupation of the lands and died on the lands.
There is only one estate which becomes vested in the president of the High Court and ultimately, on issue of Letters of Administration, in the legal personal representative. See Gleeson v. Feehan  1 ILRM p.522. The Courts found possession in the case adverse to the President of the High Court.
As the registered estate vests in the LPR and the next of kin have no proprietorial interest, the extraction of a grant within the statutory period by one of those in possession vests the estate in that person.
An action by a legal personal representative is not barred for 12 years from the date the right of action accrues. Section 13(2) of the 1957 Act applies (not section 45 as substituted by section 126 of the 1965 Act). See Gleeson v Feehan and Purcell 1991 ILRM 783.
20.2. Local Authority – labourers plot folio Proceed as in normal Section 49 cases except that the County Council should be informed of the proposed registration giving the basis of the claim.
Where the vested tenant had died prior to the date of vesting an application should not be refused on the grounds that the appropriate procedure is to obtain a fresh vesting order from the council on the basis that the vesting order is void.
Acquisition of Commonage
Where title to an entire or part of commonage is claimed, the applicant must establish that the property was occupied exclusively. In most cases they will mean that it was clearly fenced off for the statutory period. Ask for the date of erection and the nature and condition of the fences and ask for all acts of ownership exercised over all the property claimed and the uses made thereof on affidavit. Both exclusiveness of possession and the animus possidendi must be established. Corroboration on affidavit from an independent person should be considered.
Ordinary prepaid notice by post should be served on a suitable number of the registered owners and notice should be directed to be published in the newspaper with the greatest circulation in the area. See Appendix B. Consider also making enquiries about serving notice on any representative group in the area.
Commonage – Claim to a registered share.
Where a stranger claims a commonage take particular care that the acts of ownership exercised over the property amount to the full use of the share, at least. Serve notice on the other co-owners or some of them.
20.4. Bankruptcy – Administration suits. Where notice of a petition in bankruptcy is lodged and an inhibition under section 103 of the 1964 Act, appears on the folio, the application can be accepted and these brought to attention of applicant. Notice should be served on the official assignee, the Examiner of the High Court referred to in the Bankruptcy proceedings and the Solicitor for the official assignee who lodged the notice of petition. It will be a matter for the official assignee to take such action as he may deem necessary. In the absence of any reply or objection the application should proceed.
It will be noted that a Primary Decree in an administration suit stops the Statute running if evidence of such proceedings are disclosed in an application.
20.5. Possession against companies. If a company is dissolved for non filing of returns and was not barred prior thereto request a release or waiver from the Minister for Finance. See section 28 of the State Property Act 1954. This may not be forthcoming and registration will have to be refused.
Companies may be restored to the register. See section 310, 311(8) of the Companies Act 1963 and section 12(6) of the Companies Act 1982.
If a company is otherwise dissolved notice should be served on those who became entitled to its assets. Information as to the status of a company is readily available on the Company’s Office website, www.cro.ie.
21. Rights, Burdens, Charges
21.1. Ways of necessity A squatter does not acquire a way of necessity to a plot completely surrounded by other land of the former owner of the plot. A way of necessity only applies between grantor and grantee. In such a case the squatter can only acquire a right of way by prescription to the plot by long user – 20 years. (See Wilkes v. Greenway 1890 Solicitors Journal Vol. 34 page 673). This has now been amended to 12 years under section 33 of the 2009 Act.
An easement/profit a prendre acquired by prescription shall be acquired at law only on registration of a Court Order which is registered in the Land Registry (or Registry of Deeds) (section 35)
It is but a matter for the Court to decide whether a right of way is acquired by prescription.
Similarly, cancellation of a right of way by abandonment or non-user is also a matter for the Court. (See Wylie “Irish Land Law” 3rd ed. (p400)). Section 39 of the 2009 Act provides for extinguishment of easements/profits a prendre acquired by prescription or implied grant or reservation, on the expiry of 12 years continuous period of non-user (unless its is protected by registration in the Land Registry/Registry of Deeds).
Section 39(3) of the 2009 Act, clarifies that the Court has the jurisdiction to declare an easement or profit, however acquired to be abandoned/extinguished.
21.2. Appurtenant rights A squatter does not acquire an appurtenant right “as of course” (see Preston & Newsom “Limitation of Action (1953) page 79). However, the practice where appurtenant rights are on the folio of the lands acquired is to leave such right s on the folio where the applicant is not a stranger to the title but can be said to be in possession as owner of some interest although in adverse possession in relation to other interests. He is, accordingly, entitled also to the benefit of the appurtenant rights attaching to the lands.
See McAllister at pages 97/98.
Where a stranger has acquired title by adverse possession a new folio should be opened without including reference to any appurtenant rights appearing thereon.
21.3. Burdens and charges
(i) Family Estates. Treat the application as a claim to ownership only, not a claim against the owners of the burdens.
(i) Occupation of a stranger. Inform the solicitor that no specific claims have been made against the owners of the burdens or charges and that the registration will be made subject to them.
However the burdens and charges maybe relevant to the actual occupation of the property.
22.1 General The necessary enquiries must be made to establish the names and addresses of all persons whose interests are claimed to be statute barred.
This is to ensure that, so far as is practicable, the paper owner or his or her successors are warned of the application and given the opportunity to contest the application, if desired.
Where not included in the originating affidavit such names and present addresses must be set out on Supplementary Affidavit sworn by the applicant.
22.2. Notice Parties Notice is always to be served on registered owners, the personal representative of registered owner and immediate next of kin if the registered owner died intestate.
Notice should be served on all persons in occupation at the date of death of the registered owner, and their personal representatives, if deceased.
Persons other than those with barred legal or equitable interests may be considered for notice for example adjoining owners, tenants under an oral tenancy, occupiers of other parts of folio lands, owners of charges.
In the case of an application by a stranger on the title, notice must be served on the adjoining owners.
In a case which is proceeding on the basis of an unproved will, notice should be served on any beneficiaries under the Will and also on the next-of-kin of the deceased testator as if he had died intestate.
A direction may be given in a suitable case that notice of the application be displayed on the property.
In such case, a draft of the notice may be furnished to the applicant.
22.3. Newspaper Notices Notices are to be directed in a newspaper circulating in the area where the property is situate in all cases of doubt as to the identity or whereabouts of the owner or his successors and particularly where the applicant asserts that he does not know the identity or whereabouts of the persons entitled, or if it appears that the information furnished is incomplete.
Where it is claimed that a person has left the jurisdiction their present whereabouts being unknown, notices are to be directed in a national or local or other appropriate newspaper in this jurisdiction and in such other jurisdictions as may be appropriate.
See paragraph 20.3 for acquisition of commonage.
A draft of the notice may be furnished to the applicant.
22.4. Contents of Notices The content of such notices should be brief. The entire facts of an application should not be given but rather to state what length of time it is claimed the applicant is in possession and that no acknowledgement of title was given. On occasion a brief summary of the claims should be added, for example the circumstances under which a stranger on the title went into possession.
22.5. Reminders/Registered Post Follow up letters should be considered in some cases for example when notice is served on registered owner or person fully entitled and no reply is received to the notice or in the case of a stranger remaining on or going into possession on death. It may be necessary to serve notice by registered post occasionally.
22.6. Separate Notices Separate notices should be considered in an application where there are different categories of interested person, e.g. strangers, person entitled on death, adjoining owners.
22.7. Where registration sought for purpose of ejectment proceedings. Where applicant is not in actual occupation but some other person (being a stranger) is and registration is being sought for the purpose of ejectment proceedings, registration may proceed after notice to that person in occupation and in default of a sustainable objection. Where the trespasser objects but does not show occupation for 12 years (or 6 in the case of a deceased owner) proceed with the registration and let the matter be tested in the ejectment proceedings or in an appeal by the objector under section 19(1).
23. Contested Applications
Where there is clear conflict between averments of the applicant, on the one hand, and objector(s), on the other hand, the Registry is not the appropriate forum to resolve such conflict.
In such situations the applicant is to be informed that the Authority is not satisfied that he is entitled to the registration sought, for stated reasons, and that the application is to be refused.
The applicant should be informed of the right of appeal to court pursuant to section 19(1) of the 1964 Act.
23.1 Valid Grounds of Objections On receipt of an objection which prima facie discloses a valid ground for such objection it should be acknowledged and an affidavit requested setting out the grounds. If the objector has requested a copy of the grounding affidavit, this, at the discretion of the officer, may be provided. However care must be taken to ensure that ‘personal data’, within the meaning of the Data Protection Acts in relation of 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 could be considered as an alternative.
A valid objection should be referred to the applicant’s Solicitor, either by way of extract or copy, whose observations thereon should be invited.
An objection by an owner claiming that the occupation did not interfere with his future intended use for the property may be valid grounds. (See paragraph 2.3)
Where an objector avers that the applicant or his predecessors by representation or conduct, either active or passive, led the objector to alter his position or led to his inaction, treat the case as one of estoppel. Ask the objector to set out the representation or conduct. Once satisfied refuse the application.
See Christopher McGuinness v Francis McGuinness High Court Mr. Justice Kinlen 19/3/02 (FL 6453) reported in the January/February 2003 issue of the Gazette for a case of promissory estoppel.
In the case of a claim of alleged fraud refer the objector to section 71 of the 1957 Act. Ask the objector to set out on affidavit details of the facts, circumstances and dates of the fraud and to show that these facts and circumstances led to the objectors inaction in pursuing his/her rights and that the alleged fraud was the only reason for the inaction and to give the circumstances under which he/she exercised reasonable diligence in an effort to discover it. Once satisfied, refuse the application.
There is a presumption of undue influence in certain relationships such as doctor and patient. Details of the circumstance surrounding a gift of property should be sought on affidavit from the applicant, and objector (if any).
J A Pye (Oxford) Limited and J A Pye (Oxford) Land Limited v The United Kingdom.
The doctrine of adverse possession as applied in England and Wales [prior to significant amendments to same re registered land in the Land Registration Act 2002] was challenged in the European Court of Human Rights. The Grand Chamber in its decision of the 30th August 2007 found [in a majority judgement] that the doctrine as it had applied in England and Wales was not contrary to the Convention for the Protection of Human Rights and Fundamental Freedoms.
23.2 Invalid Grounds of Objection The following would not be regarded as valid grounds of objection:
- Occasional social visits on holiday periods. McEneaney v McEneaney 54 ILT and S,J. 199.
- Payment of rates, rents, annuity and outgoings on the lands.
- Where relatives abroad send monies from time to time to help out or for repairs to the house.
- Working on the lands of itself e.g. a person working on the lands may sell stock at a fair or mart and hands over the price to another person on the lands who may perhaps be exercising control or acting as owner of the lands.
- Long continued cutting of turf from the bog of another registered owner is not sufficient. (See Convey v Regan (1952) I.R. 56).
If the objection is invalid, inform the objector giving reasons.
Where there is clear conflict between applicant and objector, an order to refuse registration is appropriate.
When a decision is made give reasons to the unsuccessful party.
Inform him/her that an appeal lies to the court under section 19(1) of the 1964 Act.
24. Supplementary Documentation
24.1. Family Law Acts Make usual enquiries in respect of certificates and/or consents under the Family Law Acts in respect of all transfers, releases and consents.
24.2. Capital Taxes The certificate required by section 62(2) of the Capital Acquisitions Tax Act 2003 (formerly section 146 of the Finance Act 1994) should be sought.
25. Conversion of Title
25.1. Conversion of Title In all cases under section 49 of the 1964 Act the title should be converted into absolute title where the 30 year rule applies.
Deputy Registrar Property Registration Authority December 2009 Updated 01 February 2013 & 23 August 2017
- Did the registered owner die testate or intestate? Was a grant extracted to his/her estate? Lodge evidence of his/her death. Please supply the names and addresses of those entitled to his/her estate under the Statutes of Distribution or under The Succession Act (entitlement under the Status of Children Act 1988 and Adoption Acts must be considered). Whether or not there was any issue of a predeceased child should be stated. Any Grant or unproved will must be lodged. Lodge original State death certificates in respect of all deaths on the title.
- Please provide full detailed history of the parties against whom adverse possession is claimed and their successors including where appropriate, dates of death with proof of deaths, whether death was testate or Intestate, whether representation was raised, status married/single. Did the deceased leave children including predeceased children? Indicate whether any such predeceased children had issue.
- Please note that where the statute is being claimed it must be proven. In this regard you are referred to the notes to paragraph 2 of LR Form 6 of the Schedule of Forms to the Land Registration Rules, 2012. Accordingly, in respect of each party against whom adverse possession is claimed please set out fully the precise time and circumstances of their permanent departure and their destination e.g. on marriage, emigration, entering the religious life, hospitalization, or whatever. Indicate if any party returned and if so provide full details of the circumstances of such return. The history of possession must be clearly shown from the date of death of the registered owner [if claiming through the registered owner] or from the date of entry into possession [if claiming against the registered owner] Where the applicant claims in succession to others, it must be shown who they were how they acquired their respective interest and how such interest devolved to the applicant.
- State the names and present addresses of the Personal Representative(s) and the next of kin for the purpose of service of any notices deemed necessary.
- State the names and present addresses of all persons or their successors 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.
- Please provide full details and give the full circumstances of the original entry into occupation of the property by . Show that his/her possession was adverse or became adverse. Show that he/she had the necessary animus possedendi. Please show that he/she did not occupy the property by permission, by agreement as caretaker, as a tenant or on any understanding with the registered owner.
- State the use to which the applicant has put every part of the application property over the entire period claimed. State what acts of ownership were exercised by him/her, to what use and enjoyment he/she put the land and show how such acts of ownership and use and enjoyment amounted to exclusive possession.
- Has the applicant and his predecessors in title been living on/in occupation of, the property since commencement of possession by them? Have any other persons been living on/in occupation the land or been in receipt of the rents and profits? Full details of all parties in actual possession of the application property and the basis for such possession must be provided.
- Has the property been used by any other person for any purpose since commencement of possession by the applicant or his predecessors? If so, provide full details.
- Has the applicant or his/her predecessors paid any rent to any person in respect of the application property? If so, when was the last such payment made? State the names and address of the person to whom such rent was paid.
- Is the property securely bounded or fenced off from all adjoining property? What is the age, nature and condition of such boundaries?
- State the names and addresses of the owners and/or occupiers of all of the lands adjoining the application property.
- Has the property been acquired by the applicant for use in conjunction with other property in the applicants possession? If so please provide the folio number of such property or if unregistered title, please indicate the location of such property and describe the applicant’s title thereto.
- Lodge corroborating evidence on affidavit by an independent person relating to the possession of the applicant and his/her predecessors in title.
- 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).
- Lodge all documents of title in the applicant’s possession or control relating to the application property.
All replies to Rulings to be on Supplementary Affidavit sworn by the applicant.
On receipt of same application will be further considered.
In the matter of The Registration of Title Act 1964 In the matter of An Application of For Registration as Owner with an Absolute Title. Application No.
TO WHOM IT MAY CONCERN, ( and in particular the next of kin of _________________ )
Take Notice that _________________ has lodged an application under Section 49 of the above Act to be registered as full owner with an absolute title of ___________________________.
The map may be inspected at this Registry. All persons objecting to such registration are hereby required to file their objections in writing duly verified within one calendar month from the date of publication of this notice. In the absence of objection or in the event of any objection not being sustained registration will be effected.
Dated this the _______ day of __________________
ASSISTANT PRINCIPALLAND REGISTRY
The Succession Act, 1965
Comparison between shares on Intestacy before 1st January 1967 and such shares after that date
Distribution of Estate
AFTER THAT DATE
Husband and Issue. .
Husband took whole estate
Husband takes two-thirds and issue take the remainder
Wife and Issue
Wife took one-third and issue took two-thirds per stirpes
Wife takes two-thirds and issue take the remainder.
Husband and no issue.
Husband took whole estate.
Husband takes whole estate.
Wife and no issue
Wife took a first charge of £4,000 and one-half of remaining estate. The other half went to the next-of-kin in equal shares or, if there are no next-of-kin, to the wife.
Wife takes whole estate.
Issue and no spouse
Issue took whole estate per stirpes.
Issue take whole estate.
Father, mother, brother and sisters
Father took whole estate.
Each parent takes whole estate.
Father, brothers and sisters
Father took whole estate.
Father takes whole estate.
Mother, brothers and sisters
All took in equal shares. Children of a deceased brother or sister took their parent’s share.
Mother takes whole estate.
Brothers and sister.
All took in equal shares. Children of a deceased brother or sister took their parent’s share.
All take in equal shares. Children of a deceased brother or sister take their parent’s share.
Nephews and nieces
All took in equal shares.
All take in equal shares.
NOTE: The rules prior to 1/1/1967 were applicable only to personal property. The rules for after that date apply to all property. Prior to the Act, real estate descended to the heir-at-law (generally the eldest son) under the Inheritance Act, 1833. However, compulsorily registered land (comprising the bulk of rural land) was, by reason of Part IV of the 1891 Act (and is now by virtue of the 1964 Act), distributed as personal property.
Under the Act, distribution among issue is in equal shares if all the issue are in equal degree of relationship to the deceased; otherwise it is per stirpes.