Coming your way
This postscript to my articles in the October and November 2023 Gazettes is now published because the justification for and conditions to such law has been considered and further clarified by a High Court judgment on 10 November.
It makes clear that a claim of land ownership by adverse possession (frequently clogging our courts’ hearing lists) will only be found to be just and upheld when factually proven.
If it fails that test, it will be rejected and dismissed “in its entirety”, with costs consequences for the claimant. (See paragraph 117 of the judgment in Atlantis, the name of Plato’s fictional naval empire of the Western World, later to also submerge after defeat.)
So what is the burden of proof required for the claim to succeed the proof test? This is explained at the judgment’s paragraphs 83-107.
Before the beginning
The detail of land-ownership registered and unregistered rights, challenges to them, the limited conclusiveness of Ireland’s land-ownership public registry (Tailte Éireann), and the inconclusiveness of its boundary maps has been more detailed in my earlier articles.
The entries of registered-ownership rights can be challenged and can be rectified. Even unregistered rights and burdens are recognised as valid by our law.
In my October article, I explain: “Entries about ownership filed in the Land Register folios are prima facie conclusive, binding, and State guaranteed. The 63-year-old law provided in section 31(1) of the 1964 Registration of Title Act recognises this basic principle, which is there to demystify ownership issues and to comply with private-property-ownership fundamental rights recognised by our Constitution of 1937 and by international law, including the ECHR, transposed into Ireland’s law by its ECHR Act 2003.
“Section 31 also accepts, and provides exceptions to, the reliability of registered land-ownership rights. It does not permit the courts to undermine registered security rights on any application, per order 42, rule 24 of the Rules of the Superior Courts, as those entries are conclusive.
“In Tanager v Kane (2018), Baker J ruled that a court hearing a creditor’s application for possession of registered land, and having adduced evidence of it being the registered chargee, may not undermine the correctness or conclusiveness of the register. Its exceptions include simple-entry clerical errors, mistakes, inaccurate delineations and mapping of property boundaries, fraud, and adverse possession causing acquisition of legal title – when proven to the court’s satisfaction.”
Coming home
The statutory right to claim land ownership by adverse possession, which challenges the public land-register conclusiveness, can be abused to create leverage advantages, as it causes uncertainty and costs time to resolve.
To exploit this opportunity, a claim can be filed with the land registry per section 49 of the 1964 act.
Noted in my November article is how such an application, if contested, must then be proven to satisfy the court that it is just: “Acquisition of good title to land in good faith is ‘possible’ but also is challengeable: ‘nemo dat quod non habet’. By section 49(2) of the 1964 act, a claimant to land-ownership entitlement, to land he is not registered as owner, must prove to the satisfaction of the court animus possidendi and actus possidendi, exclusive, uninterrupted possession and occupation of the land claimed for in excess of 12 years, whether the land is registered in another’s name or never has been registered in anyone’s name. Proven must be factual uninterrupted possession (actus possidendi) (by, for example, installing fencing around its boundaries) and the intention to possess (animus possidendi) that land.”
I also pointed out the 12-year time limit after which a registered landowner may lose to an adverse possession claimant: “A person’s right to recover land expires 12 years from the date the right of action accrued (section 13(2)(a), Statute of Limitations Act 1957).”
After that, the registered owner ceases to own the land. Section 24 of the 1964 act provides that “at the expiration of the period fixed by this act for any person to bring an action to recover land, the title of that person to the land shall be extinguished”.
The successful owner by adverse possession can then be registered as the landowner of the disputed land (paragraph 86 of Atlantis). Even then, however, that land title under new ownership may remain limited by unregistered rights, servitudes, and encumbrances.
At paragraph 17 of the Atlantis judgment, Judge Mulcahy points out that, by section 72(11)(p) of the 1964 act, registered land “shall be subject to” registered but also to unregistered “burdens”, namely, as provided, “rights in the course of being acquired under” the Statute of Limitations.
He referred (paragraph 29) also to its section 42(2) limiting provision, whereby even if the claimant applicant is successful and may be then registered as the land’s owner, that will still be “without prejudice to any right not extinguished by such possession”.
In Ireland, land-ownership rights need not be registered to be valid. Unregistered land rights exist and may be enforceable.
Merry-go-round
The Atlantis judgment proof-test takes account of the dicta in other Irish judgments, which it summarised as being that “minimal acts of ownership will defeat or negative a claim that lands have been adversely possessed, but the question of whether lands have been adversely possessed must be determined by reference to the particular facts of any given case” (paragraph 89).
So a registered owner bears a light burden of title proof, compared with the onerous proofs of both possession and intention to dispossess and to acquire title that a claimant must deliver to successfully persuade a court that those test ingredients are sufficiently obviously present to find in favour of the claim and to remove the extinguished register entry and authorise entry of the claimant as owner.
Oh well
In Atlantis, Judge Mulcahy refers especially to the dicta of then High Court judge Frank Clarke, later upheld by the Supreme Court on appeal, in an earlier case to the Atlantis decision (Dunne).
In his High Court judgment, Clarke J underlined: “It is, therefore, important to emphasise that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time.”
In the later Supreme Court appeal judgment, Charleton J also gave clarity to this law, which gives a claimant only a very limited chance of success, by supporting the dicta of Clarke J: “Clarke J correctly identified that mere occupation is not enough to ground a claim of adverse possession and that what is also required is that the ostensible adverse occupier of the land does so with the intention of excluding the original owner.”
No place to go
What type of ostensible action of possession may assist a claimant to prove animus and actus possidendi that will prevail when all that the paper title owner (whether registered or unregistered) has to show to defeat the claim amounts to less than “minimal acts of possession”?
In Atlantis, Mulcahy J restated (paragraph 92) that “the enclosure of a field by a wall is an example given by Charleton J in Dunne of an activity ‘that speaks loudly of possession’”.
Fencing, farming, grazing, gardening, construction, or drainage would also be loud examples, best usefully combined, to assist in achieving a claim’s success – always provided, however, that such activities are carried on uninterrupted beyond 12 consecutive years without any even minimal counter-action of the actual legal owner.
Such actions would go towards achieving the required high proof-test level were they not objected to during the 12- year period or, better, were consented to by and/or with the knowledge of the owner.
Got to move
Typically, the owner (whether a natural person or a corporation) most at risk is an inattentive non-resident who has bought the land site for future development or who is the successor to an estate that has not been administered or probated.
That risk, even if the land is not in regular use by the owner, can be simply overcome by taking ‘minimal acts of possession’ and ‘occasional use’ like publicly visiting the land, whether by the owner, estate executor, surveyor, or other agent, and taking ownership steps, such as securing and maintaining its boundaries.
In that way, even the construction of a wall by the claimant of adverse possession will not be enough to satisfy the high standard proof-test justifying adverse ownership acquisition.
In Atlantis, Mulcahy J highlighted this (paragraph 97): “However, overall, the evidence clearly suggests that in the years following the construction of the stone wall around the disputed property, there was occasional use by the first defendant of the field to graze animals, which constitute sufficient acts of ownership to defeat a claim for adverse possession. Dunne makes clear that more limited acts of ownership than actual use may defeat a claim for adverse possession.”
The past and present facts of public and private land acquisition by adverse possession, both nationally and globally, justifies regulation to control risks to fundamental rights.
Only under extremely onerous conditions will the law permit it. Policing compliance with its high standard of proof is the task of the public authorities and courts.
This still brings with it, for the innocent victim, costs, inconvenience, process delays, injury, and loss, even if the acquisitor’s claims are dismissed as unjustified by the law.
Staking a claim has little chance of being found to be legal. Legislation continues to permit it.
Duncan Grehan is a member of the EU and International Affairs Committee of the Law Society of Ireland.
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