The doctrine of adverse possession sounds like an arcane piece of legal jargon, but call it 'squatter's rights' and you know exactly how important it can be - just ask broadcaster Pat Kenny and his neighbour.
Most land owners are aware of the need to prevent squatters from acquiring rights over their property. However, they may be unaware of what steps they need to take in order to prevent a claim of adverse possession by squatters on their property. Following a number of recent cases in the UK, the European Court of Human Rights and Ireland, the law in the UK and Ireland now differs. This article outlines the changes made and their implications.
Position in the UK
Prior to the case of Pye (Oxford) Limited v Grahams in 2002, the process in the UK of establishing a claim for adverse possession was based on the landowner's claim becoming statute-barred after 12 years and the squatter then being entitled to apply to become the registered owner of the land. The regime made no provision for the paper owner to be warned of a potential claim for adverse possession and there was no entitlement for the landowners who lost their land to claim compensation or to call for the register to be altered.
In the Pye case, the House of Lords overturned a Court of Appeal decision and held that the Grahams acquired 23 acres of land by adverse possession following the expiry of a grazing agreement they had with Pye. This resulted in the implementation of a new regime in the England and Wales for registered land since October 2003. The Land Registry Act 2002 there now provides for an early warning system whereby a squatter may apply to register his title after ten years but the registrar must, in turn, give notice to the legal owner that an application for title to the property has been lodged by the squatter. The legal owner must oppose the registration and a two year clock starts to run, within which time the owner must take steps to regularise his title, namely by taking eviction proceedings and enforcing any order for possession within that time. If the registered owner ignores this notice, then the squatter will be granted possession. If, however, the registered owner disputes the issue, the squatter is required to give specific reasons justifying acquirement of title through adverse possession.
In the meantime, the Pye case went to the European Court of Human Rights where, in August 2007, the court upheld the House of Lords' decision and voted to retain the doctrine of adverse possession as it exists.
The court confirmed the four key principles of the law on adverse possession:
- All the possessor has to do is enter into ordinary possession of the land without permission, with the requisite intention to possess.
- Possession is made up of two elements, namely, factual possession and an intention to possess.
- An intention to possess is "an intention in one's own name and on one's own behalf to exclude the world at large, including the landowner with the paper title, in so far as is reasonably practicable and so far as the processes of the law will allow" and that it does not mean an intention to own or require title.
- The idea that possession depends on the intention of the paper owner is at the very most only an inference which can be drawn from the actions or inactions of the possessor in view of the express intentions or interests of the paper owner.
The Irish Position
In September 2007, a High Court case, Dunne v Iarnród Éireann and CIE, set out the test for determining whether a squatter had acquired the property by adverse possession in Ireland. In summary, the principles applied by the court were as follows:
- is there a continuous period of 12 years during which the squatter was in exclusive possession of the lands in question to an extent sufficient to establish an intention to possess the land itself?, and
- is any contended period of possession broken by an act of possession by the landowner? If so, time will only start to run when the act of the landowner terminates.
The court qualified the second part of the test by holding that the sufficiency of the act of possession required for the landowner to break possession and wind the clock back to zero was a very low threshold. This would be satisfied by even the slightest of acts of possession on the part of the landowner. The court also accepted that the future intended use of the land by the landowner could not be relevant except perhaps as one of the indicators relevant to a bona fide held intention to possess, or lack thereof. In this case, the owner, CIE, had carried out works on part of the land and had at one stage reestablished fences between the lands and the neighbour's lands. The court found the actions to be sufficient to start the clock running again.
Following the enactment of the 2002 Act in the UK, the early warning system applies in England and Wales only and there seems to be no immediate plans to change the legislation in Ireland. In fact, the amendments recommended by the Law Reform Commission to the law on adverse possession were left out of the Law and Conveyancing Reform Bill 2006 so it can only be assumed that the legislature has no desire at this stage to amend the law. Hence, there are now two distinct differences between the two jurisdictions. On both counts, the paper owner comes out more favourably in Ireland as the law stands. It is difficult to see how a squatter could win, short of the paper owner being unaware of his title or being abroad or having absolutely no interest in the property.