Legal Methods and Analysis

Introduction

Adverse possession is a cold and harsh instrument, and has come under constant attack over the last decade, and while it does not enjoy much popularity, it helps to fulfil a vital function in preventing stale claims and facilitating conveyance. This essay will focus on the following to show how important the doctrine remains to this day,

Perception

Preventing stale claims and facilitating conveyancing

To encourage owners not to sit on their rights

consequences from Pye

Irish situation after the Grand Chamber result in Pye

Adverse possession on registered land

Economic impact of adverse possession

Alternative Dispute Resolution

Sharing the costs

Perception of adverse possession

The public view adverse possession with distain and weariness, as they are influenced by a number of factors, firstly they see the doctrine as allowing legal owners of land to be ejected with the blessing of the state, which has historical colonial connotations in Ireland. The public are also heavily influenced by whatever angle the media take in portraying a case, as seen in contrasting approaches taken by the media covering both the Charleton v. Kenny [1] and case known as the Dunsink lane development.

The case involving celebrity Pat Kenny was treated by the media in such a way as to portray both parties with respect and dignity, which encouraged a more favourable response from the public, even though is it is estimated that Pat Kenny had to pay Gerald Charleton in excess of one million pounds for the land. [2] While on the other hand, the traveller’s negative portrayal by the media led to a negative public response, both to the travellers and to the concept of adverse possession, even though the travellers had lived and raised families there for over twenty years.

A report by the LRC 2002 named, Title by Adverse Possession, [3] showed that even though there was an ethical argument against the use of the doctrine, as squatters could be viewed as ‘land thieves’, [4] that this view did not fairly represent the reality of the situation and could be rectified by clarifying the different categories squatters fell in to. [5] The Commission felt that one of the main reasons for allowing the doctrine to continue was 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”. [6]

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 unofficial 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.

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 it 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.” [7]

The Law Reform commission in Ireland has also stated that, adverse possession helps settle, “many doubtful claims,” [8] justifying it under reasons of “social justice” where a paper owner can legally be stripped of his interest in land. [9] The overall opinion of the LRC report in 2002 was that the law in relation to adverse possession in Ireland needed to be clarified, especially in light of the introduction of land registration, and what type of title a squatter should have at the end of the statutory limitation period.

Ballantine [10] 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 investigation of title by guaranteeing that outstanding claims were time barred.” [11]

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. [12]

To encourage owners not to sit on their rights

Another reason why adverse possession is still very relevant today can be found in the equitable maximum, “Vigilantibus non dormientibus, jura subveniunt.” Land owners have a duty to make the most of our must vital resource ‘land’ and if they fail or neglect this duty, then it is only right that a squatter who steps in and performs this duty be given possession of the land. See the comments of Lyall, [13] and also Justice Bar. [14]

The concept of this maximum was to have serious repercussions in English land law following what happed in the J.A. Pye (Oxford) Ltd v Graham [15] when it was appealed to European Court of Human Rights, with the applicant arguing that the law in the U.K. [16] had failed to protect his property rights. This argument was accepted by the Forth Chamber of the ECHR in 2005, [17] ruling that U.K. law regarding adverse possession was in breach of Art 1, Protocol 1 of ECHR, which lead to a further appeal to the Grand Chamber, which allowed the Irish to make a sub-comment highlighting the importance of adverse possession in modern land and conveyancing law. [18]

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.

One valuable piece of legislation we have in Ireland which co-exists with the doctrine and provides an alternative approach to dealing with wasteful use of land is the Derelict Sites Act 1990, which enforces duties upon private, local authority and even state bodies to preserve their lands and ensure they don’t become derelict. [19] The Act also gives local authorities the power to take action against land owners where there is a danger of land either becoming or continuing to be derelict, [20] and also to maintain a derelict site register, which forces owners of derelict sites to pay an annual levy based on the market value of the land, [21] and also to issue compulsory purchase orders for derelict lands. [22]

The Act also empowers the Minister for the Environment to force local authorities to take whatever action to ensure land does not become derelict, which includes having them, sell land that they have no use for. [23]

Consequences from Pye

The pending result of the ECHR case regarding Pye, would appear to have greatly influenced the outcome of a joint effort by the Irish Government and LRC to upgrade land and conveyancing law in Ireland. The result being a hasty and misconceived report on adverse possession, to be published in 2005, [24]

The 2005 Draft Bill clearly shows the reactions of a Government drastically trying to comprehend and react to what they thought the outcome of the Pye case might be, and the fact they contemplated severely restricting the powers of the doctrine, gives us an idea of what they thought the outcome would be. [25]

However despite the fears and reservations of the commission, they still recognised the valuable role adverse possession serves in land and conveyancing law, as they remarked on how important it was to retain the doctrine, as it served an, “extremely useful purpose” [26] of helping to “quieten titles.” [27] The commission tried to justify the restrictions by stating that the new restrictions would prevent inequitable results while allowing the doctrine to fulfil its main function

The Commission [28] report made many recommendations for restrictions on the doctrine, [29] and also that under s.130.1, the courts should be able to impose procedural requirements on applicants such as, enquiry, search’s, notices and advertisements, all of which were directed at ensuring the paper owner was given sufficient warning of applications. There was also recommendations for the squatter to satisfy the court as to an unbroken period of possession to satisfy the Statute of Frauds, and included other conditions that courts must follow before granting order of possession. [30]

The hasty recommendations would have significantly and unnecessarily reduced the powers of adverse possession in Ireland. This resulted in a serious reaction from the Law Society of Ireland, which was based on the Law Societies Conveyancing Committees submission presented to the Government in 2005 in a bid to prevent any change in the law of adverse possession.

The Law Societies Conveyancing Committee showed it was better to wait and see what the outcome of Pye would be, in order to allow a more reasonable response to any concerns the ECHR may have, [31] and in its submission to the Government in 2005 they argued against recommendations to restrict adverse possession.

The commission disagreed with any idea of forcing a squatter to apply for a court order, finding that it would only lead to more needles expense on the applicant, [32] and that there was more than enough protection provided by section 49 of Registration of Title Act 1964, regarding property registration applications for adverse possession, which already allowed the Land Registry and applicants to appeal matters to the court, [33] which has proved successful. [34]

The Committee argued that awarding compensation would only exacerbate disputes between families over un-administered lands and neighbours fighting over boundary markers, leading to an increase of cases before the court. [35] The issue of compensation has over the years provoked much discussion, with some arguing it would be unfair to the squatter who may have invested heavily both financially and emotionally in maintaining the land, thus fulfilling a public duty, where the paper owner failed.

The alternative view is that the squatter has already benefited from free use of the land over the years, and also that there are cases where there was a deliberate act of trespass just to gain rights over another’s property, which in itself is morally wrong. There is also the situation of un-administered estates, where a family may not have any legal right to the land, but they certainly have a moral right.

It could also be said that compensation would not provide much incentive for the paper owner to either maintain his land, or react to a claim for adverse possession, as either way he will be compensated. Ultimately the commission reached the conclusion that, “any change in the current legislation is….unnecessary and inappropriate.” [36]

Pye (Oxford) Ltd v United Kingdom was based on a future use the paper owner had in mind for his land, however it’s unlikely this could have happened in Ireland as Irish courts take a different approach regarding this matter. In Leigh v Jack [37] the court found that once a paper owner had a future use for the land, a squatter could not claim adverse possession over his title. However this decision has be strongly criticised by Barron J, [38] in Durack Manufacturing Ltd v Considine, [39] although he did enclose a proviso that any squatter who is aware of a paper owners future interest, and only using the land until such times as the future interest became a reality, should not be entitled to adverse possession.

Irish situation after Grand chamber result in Pye

Ultimately in 2007 the Grand chambers decision was that English law before its introduction of the LRA 2002 regarding adverse possession did not violate Art 1 Pro 1 of ECHR, [40] recognising that Governments have a certain amount of freedom to control land in the public interest. This decision by then was most probably expected by the Irish Government as demonstrated by the stay on all adverse possession applications in 2005, subsequently being lifted in 2006. The Law Society Conveyancing Committees recommendation to remove section 129 and 130 altogether from the Bill, [41] would appear to have been accepted by the Irish Government as they were not contained in the Land and Conveyancing Law Reform Bill 2006, which continued right up to and including the Land and Conveyancing Law Reform Act 2009.

However the ECHR were not happy with the idea of a person taking land without compensation, but felt that adverse possession should be viewed as a tool for regulating titles, and not seen as a means of depriving a person of their title. [42] Not all judges were in agreement though, dissenting judges believing that the general interest of the public was in no way provided for by, “depriving a registered land owner of his beneficial title to the land except by a proper process of compulsory acquisition for fair compensation.” [43]

They also felt that compensation would not solve the problem because it, “did not sit well with operation of limitation periods.” [44] The measures were also found to be, “completely disproportionate,” [45] with Loucaides and Kovler JJ stating that adverse possession, “encouraged illegal possession of property and the growth of squatting.” [46]

Adverse possession and registered land

Lord Binghams statement in Pye [47] shows 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. [48] 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 [49] which is that there should be no distinction made in regards to the effect of adverse possession on either registered or non-registered lands, which is a view also supported by section 49 of the Registration of Title Act 1964. [50] However it is unlikely that an Irish court would have taken the same decision as in Pye, [51] where even though the paper owner or representative had visited the land every day, once he didn’t set foot on the land it was held not to be sufficient to regain possession. In contrast the Irish courts have taken a different approach, which appears to be that even the smallest action on behalf of the paper owner is enough to extinguish the squatter’s claim, as seen in the opinion of Justice Finnegan. [52]

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 [53] 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. [54]

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. [55]

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.

Alternative Dispute Resolution.

As stated earlier, adverse possession is a cold, harsh, and logical instrument, and while it serves an important function, it fails to cater for the devastating emotional consequences that result in these types of cases.

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.

A possible solution to alleviating the mental anguish from disputes involving land and especially cases involving adverse possession before they get out of control, 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 [56] where the honourable Ms. Justice Maureen Clarke [57] 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, a point that was recognised by the Law Reform Commission in its consultation paper on Alternative Dispute Resolution [58]

Sharing the costs

A 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 and honest 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 make the guilty party pay both sides costs; this might prove as a deterrent and a way of penalising 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.

Conclusion

Adverse possession is as relevant today as it ever was, because it is the only reliable instrument that can provide a stable platform for land conveyancing in Ireland. The Doctrine has survived virtually unchanged in Irish law throughout the years because it has no sinister hidden agenda, it merely delivers exactly what it was designed to do, which is a fair and reliable way of ensuring that one of our most valuable assets, the land, is used to its fullest potential. It would be easy to develop the doctrine a little, like introducing elements of the Land Registration Act 2002, in relation to registered land here, or encourage the use of devices such as A.D.R. which may help reduce anger and tension involved in some disputes, especially among neighbours.

To sum up, adverse possessions simple but effective nature allows it to remain vitally important to underpinning land and conveyancing law in Ireland for the foreseeable future.