Adverse Possession Makes it De Facto

It is the policy of the Limitation Acts that those who go sleep upon their claims should not be assisted by the courts in recovering their property, but another, and I think equal policy behind these acts, is that there shall be an end to litigation.

Irish law interprets a person’s right to land as being based on the fact that another person cannot claim a better title over it. Thus in Ireland the person usually with the best title to land, is the person whose title vests in possession. This is why the courts recognise a person who has had control of land for twelve years or more, even if it’s adverse possession to be the rightful owner.

Adverse possession has been described as primitive and outmoded, however as this essay will show that it is still as relevant and important today as it was when it was created.

Elements of adverse possession

1.1 To encourage owners not to sit on their rights

Prevention of stale claims

Quieten titles and facilitated conveyance

Boundary disputes

Adverse possession and registered land

Economic impact of adverse possession

Irish reactions to Pye, Law Reform Commission Reports.

Possible ways to improve and enhance adverse possession.

5.1 Alternative Dispute Resolution.

5.2 Sharing the costs

5.3 Penalties

To encourage owners not to sit on their rights

The equitable maximum of, “Vigilantibus non dormientibus, jura subveniunt” is seen as a way of encouraging paper owners to utilise their land to the best of its abilities, as land is seen as a vital natural resource, and if they fail or neglect to do this then a squatter who is prepared to make use of the land has a legal right to take possession from the paper owner. See the comments of Lyall. [4]

The law cannot be expected to protect the interests of a landowner who either has failed or even has no interest in the current state of his land, or where the owner has just not taken action in time to prevent the limitation period from running out. However there is a need to be careful when courts do apply this maximum strictly, as it can lead to unjust outcomes, particularly where the paper owner had in mind a future use for the land, because it can be difficult to figure out whether the adverse possessors use of the land or the real owners future use of the land will yield the most benefits.

This is what happed in the case of Pye [5] and resulted in the loss of land worth around thirty five million. Nueberger J discussed the “sleeping Theory” and found there to be no justification in the circumstances, where the paper owner “was content to let another person trespass on the land for the time being.” The judge could find no logic in the court’s decision here. The case contradicted the previously held believe that there could be no adverse possession, once the paper owner had a future use in mind. [6]

The court in Pye applied the principles of adverse possession strictly, ruling that the limitation period must be adhered to, “regardless of the size of the claim. Therefore the value of the land was of no consequence.” [7] The resulting appeal of this case to the European Court of Human Rights, led to major changes in England regarding how the doctrine of adverse possession now operates regarding registered land, as seen in the adaption into U.K. law of the Land Registration Act 2002. Both English and Irish judiciary must now interpret adverse possession in line with the ECHR.

Preventing stale claims and facilitating conveyance

It is a fact that the further we go back in time, the more likely it is for documentary evidence such as hand written deeds, or evidence to back up an informal conveyance to become lost or unreliable. This is why adverse possession is important as it provides a more secure and stable platform for conveyance, and as we do live in a consumerist driven society, where the use of land is always a main concern in order to allow the property to remain marketable and retain its full market value. With this in mind it is easy to see why adverse possession is vital particularly in regards to unregistered land, as in these situations ownership can only be verified by possession, adverse possession is needed is because it,

Lifts the curse of dubious title which at present sterilises land held by squatters…that the squatter should at the end of the limitation period, be given a viable and merchantable title. [8]

This is where adverse possession becomes an invaluable tool as its main function is to help quieten titles after the recommended statutory period is up, it promotes quicker and far more inexpensive investigations of title, as you don’t need go back any further then the limitation period prescribed by the statute. Without adverse possession, investigations would need to go back possibly hundreds of years to the root of the title in question. This shows that adverse possession helps to reduce costs associated with having to employ legal and historical professionals to investigate titles, and helps to inspire confidence in potential purchasers.

This is in keeping with the English Law Commission ideology that it is vital to establish ownership of land in order to ensure it retains its status as a valuable commodity, “If possession and ownership become wholly out of kilter, it renders the land unmarketable.” [9]

The Law Reform commission in Ireland has also stated that, adverse possession helps settle, “many doubtful claims,” [10] justifying it under reasons of “social justice” where a paper owner can legally be stripped of his interest in land. [11] This would seem to comply with Article 1 of Protocol 1 of the European Convention of Human Rights, which states, “no one shall be deprived of his possessions except in the public interest”

Ballantine [12] suggests that adverse possession was not created as a mechanism to reward the act of trespassers or to punish the inactions of a paper owner for sleeping on his rights, but that its primary function was to quieten titles and rectify any mistakes in conveyancing. While Dockray, believes that, “shortening and making uniform the period of limitations would shorten abstracts and investigation of title by guaranteeing that outstanding claims were time barred.” [13] Adverse possession also protects landowners whose interests vest in possession, as it prevents any claims which predate the twelve year limit.

If there was no statutory mechanism such as adverse possession to reassure potential purchasers as to the title of the property they were buying, it would in the long run affect the property market. [14]

Boundary disputes

An example of how complex and dangerous disputes over boundaries can be is seen in the sad case of the murder of Vincent Cully and his wife, who lived in Turin, Devlin, County Westmeath. The murder of the parents of six children serves as a tragic reminder of how disagreements over lands, especially over boundary disputes between neighbours living in close proximity can fester out of control and ruin the lives of all those involved. This murder was motivated by a boundary dispute which led to a serious of further disagreements over the years and bad blood between the disputing parties. The long drawn out and expensive litigation process does nothing to help aid these types of disputes, and neither does the impartial and sometimes callus behaviour of legal representatives.

Adverse possession is still the best and only way of reducing the potential damage and loss suffered as a result of a genuine mistake or errors in relation to boundaries. This is why key elements provided by adverse possession such as, actual and open possession, and hostile and exclusive possession provide both parties with some protection, as these elements may increase the chances of the real owner discovering the mistake and hopefully rectifying the problem before the innocent party has invested too heavily.

Adverse possession and registered land

There would appear to not be as much justification for the need of adverse possession in regards to registered land, as Lord Bingham’s statement in Pye suggests,

In the case of unregistered land and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title of land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result and even harder to see why the party gaining the title should not be required to pay compensation [15]

Lord Bingham is correct here that applying adverse possession equally to registered and unregistered land can result in innocent land owners losing their interest in land. The impact of adverse possession on registered land in the England has changed following the ruling of the Grand chamber in the ECHR regarding the case Pye. [16] This led to the introduction of the Land Registration Act 2002. The result of this act is to leave it almost impossible now to acquire registered land by means of adverse possession. The reason for this is that there is a new requirement in the Act that a person in adverse possession of another’s persons land, must apply to the land registry after ten years.

The result of this is that the registry will then contact the registered owner and make him aware of the application, thus allowing the registered owner at least two years to react and re-establish his claim over the land. This is primarily based on the fact that a title to registered land does not need to vest solely in possession as the owner can be easily identified by simply checking the land registry.

In contrast the situations in Ireland can be seen in the view of the Law Reform Commission [17] which is that there should be no distinction made in regards to the effect of adverse possession on either registered or non-registered lands. A view which is also supported by section 49 of the Registration of Title Act 1964 [18]

The practice of the land registry, which was, and remains, that where a person has barred the right to possession of the registered owner, he will be registered with absolute title to the existing leasehold interest, thereby effect giving such a squatter the advantage of parliamentary conveyance. The practice of the land registry is based on the interpretation of the word “title” in section 49 as referring to the particular ownership or claim of the registered owner rather than an “estate” or “interest” and this practice has been in place since the enactment of the Registration of Title Act 1891 [19]

It would make sense for Ireland to adapt the same policy as the Land Registration Act 2002 in the UK in regards to registered land, as the justification for adverse possession used in Ireland is that it helps prevent stale claims from arising, however this does not apply to registered land.

The Land Registration Act 2002 would appear to be the best solution from the point of view of the paper owner, but could also be seen as a very harsh solution for a squatter who may have lived on that land for a decade and raised his family, invested his time, effort and finances, and it would be even fair to say that he would have established an emotional tie to the land, only to have it taken from him.

Economic impact of adverse possession

While adverse possession can be viewed as an important tool in reducing costs in relation to property and conveyance, it can also have the opposite effect as it puts pressure on land owners to monitor any unused property they have. This can be seen most often in regards to county council lands, which would benefit significantly from an extension of the statutory period, to perhaps fifty years. This would help lower monitoring costs, due to the fact that the council would only need to check its unused lands the day before the limitation period lapsed.

It may also be a good idea if the Government abolished adverse possession altogether on state owned lands, this would discourage adverse possession in the first place, thus eliminating the need altogether for any expensive litigation and monitoring costs. The statutory period as it stands at the moment in relation to privately owned land would appear to be correct.

A survey carried out [20] in the United States examined the effect of varying the limitation periods in regards to adverse possession. They discovered two ways in which alternating the statutory period could impact the property market, the first was that shorter limitations periods would reduce the risk to purchasers in regards to doubtful titles, and secondly that longer periods of limitations would reduce the costs of the owners.

This shows how important it is to find the right balance, because the study revealed that while monitoring costs were reduced by longer statutory periods, that the longer the statutory period the more the land will lose value, on the other hand, shorting the period to much would lead to higher demand for land, which would lead to higher property prices, which would also be inflated by the need for increased level of monitoring costs, with a further knock on effect of higher instances of adverse possession, as trespassers would be influenced by the shorter limitation period. [21]

There is also the effect on the community to consider, as shorter periods would lead to a much higher level of anti social behaviour, and would promote deep distrust within the community, and also lead to a lot more expensive actions for repossession, leading to increased investigation costs. [22]

The study also found that mistakes regarding property can be extremely expensive where property values are high, that there is more benefit to be had by resolving disputes, and less need for adverse possession, because title owners would have more to lose. Not surprisingly the study also revealed that a higher population would lead to an increase in the volume of conveyances, which in turn would lead to a lot more mistakes regarding boundaries, registration etc.

Irish reactions to Pye, Law Reform Commission Reports.

The decision of the Grand Chamber in the case of Pye [23] was to have a lot of influence on the Land and Conveyancing Law Reform Bill 2006 and how it addressed the concept of adverse possession, which resulted in significant changes to many proposals put forward by the Draft Bill [24] including compensation for disposed owners and for applications to be decided in courts, and other features that would have greatly reduced the powers of adverse possession, which could be viewed as a reaction to the fallout from the Pye. [25] The Grand Chamber over ruled the Initial Chambers decision that English law regarding adverse possession and how it related to registered land was in violation of Article 1, Protocol 1 of the Convention of Human Rights.

It is clear from the report contained in the Land and Conveyancing Law Reform Bill 2006, that adverse possession is still the best and only viable means of safe guarding the interests of both private land owners and future purchasers of land. Most of the recommendations proposed by the Draft Bill 2005 were a desperate and pointless reaction to the Initial Chambers ruling in Pye, and were quickly recognised in the Land and Conveyancing Law Reform Bill as not necessary in Ireland, due to the protection already enjoyed here by purchasers and land owners from, Article 40 and 43 of the Irish Constitution, [26] adverse possession and the Statute of Limitations Act 1953.

Ultimately the Land and Conveyancing Law Reform Bill reached the conclusion that, “any change in the current legislation is………unnecessary and inappropriate.” [27]

Possible ways to improve and enhance adverse possession.

Alternative Dispute Resolution.

A possible solution to the costly judicial route of resolving disputes involving land and especially adverse possession could be ‘alternative dispute resolution’ which provides a very cost effective means of resolving land disputes. This alternative approach was used to good effect in the case of Charleton v. Kenny [28] where the honourable Ms. Justice Maureen Clarke [29] in the High Court wisely convinced both parties to avail of mediation, which was to prove very successful.

Justice Clarke made it very clear that at the end of the day, she would only be accepting one parties account of events over another, and the fact that they would have to continue on living next to each other would not be considered by the court. This is why this form of mediation is so useful, as it attempts at least to resolve disputes; particularly in cases involving neighbours or family members, before it becomes bogged down in expensive litigation and destroys what little is left of the relations ship that they may have enjoyed before the dispute.

However both parties must be willing to participate fully and this might mean that they discuss any other underlying problems that might also be fuelling the dispute, a point that was recognised by the Law Reform Commission in its consultation paper on Alternative Dispute Resolution [30]

Sharing the costs

Adverse possession can be viewed as a cold statutory instrument that is guided only by the facts of the case and are bound to follow the letter of the law to the fullest extent. One major issue incurred by paper owners trying to defend their right to land is the practice of Irish courts to have each side in a dispute, regardless of the outcome, pay their own costs. The reason for courts applying this concept is that they perceive each party as having a genuine claim to the land. This practice has however resulted in many genuine owners having to abandon their actions due to a lack of finances, particularly where the costs involved sometimes exceed the value of the land involved.

This could be avoided if courts were to follow normal tort procedures and make the guilty party pay both sides costs; this might prove as a deterrent both to any party who may be acting unlawfully, and to land owners who have failed in their duty towards their lands, but are just contesting it due to misplaced pride.

Penalties

Adverse possession can also unfortunately be exploited by those who would act illegally to get whatever they wanted, as the Law reform commission pointed out,

However it is recognised that on occasion the doctrine may operate unfairly especially where it appears to enable a person, who deliberately sets out to take advantage of it, to use it as a means of obtaining ownership of someone else’s land without paying any compensation. The same applies where it appears to extract a very severe penalty on a landowner (the loss of land) through a mere oversight or mistake. [31]

A solution that could be applied to situations where it is proven that one party had deliberately interfered with the boundary or land of another for their own benefits is to impose very strict fines. When one considers the damage both financially and psychologically that can befall the victim of such a trespass, it seems fair to demand that the fines match reflect this harm, and also is sufficient enough to be a deterrent to future would be criminals.

Conclusion

Adverse possession may still have its roots in antiquity, however the fact that it is still relied on so heavily today, shows just how important this instrument is in protecting interests of both the squatter and the paper owner. It still remains to be the only proven system that manages to successfully balance the rights of both the squatter and the paper owners.

Adverse possession, is an important means of quietening titles and bring land disputes to an end, and also protecting the interests of future purchasers, thus helping to install confidence and stability in the property market. Any attempt to eliminate or substantial limit the effects of adverse possession would only lead to economic chaos.

There are always ways of supplementing the protection adverse possession provides, thus making it more user friendly and helping to provide more protection against miscarriages of justice, such as the Land Registration Act 2002, which would offer further protection to registered land owners, and also ADR which would help bring a more swift solution to land disputes, which would lower the costs, and perhaps reduce the hostility of all those involved, which would allow both parties to carry on with their lives and put the dispute behind them.