ADVERSE POSSESSION
- Doctrine where a person in possession of land owned by someone else may have valid title
to it subject to
a) Certain common law requirements
b) In possession for a sufficient period of time as defined by statute of limitations (12
years)
• Ownership is a series of rights and ownership and possession are not the same. Possession is
a right that ownership covers.
• If you’ve got ownership > you can transfer a possession to someone else and still maintain
ownership. If you have land and transfer it to someone else, they have physical possession
now as they are physically on the land but this does NOT give them ownership.
• Possession and occupation are not necessarily the same thing, either.
• Possession:
- Physical control
- Intent.
• Title:
Lyall:
o Under older common law system, possession was a basis for title > a person who had factual
possession, had the right to remain in possession and this right was against anyone else
except for a person who could demonstrate better title.
o Better title then, was earlier title or paper title.
- Title is not absolute or ultimate
- It is relative
o If absolute, anytime there was a dispute you would have to produce the perfect title owner
but this is not how the law works
o Rather, there will be several claims to title and lawyers will determine who deserves it.
Lord Advocate v Lord Lovat
- The courts will have to consider the facts specific to the case where the concept of adverse
possession arises
STATUTE OF LIMITATIONS 57
S.13
2. (a)
➢ No such action shall be brought after 12 years from the date on which the right of action
accrued.
- other than dealing w/ state bodies, the length it takes for an adverse possessor to
get title to land is 12 years
- so paper owner has 12 years to challenge the adverse possessor.
- Accrual – when the adverse possessor adversely possesses the land – it has to be
against the wishes of the owner – ADVERSE.
, THE ELEMENTS NEEDED FOR ADVERSE POSSESSION
1. Discontinuation of paper owner’s possession
- Must show that paper owner no longer has possession
- Accrual will not begin unless the land is in possession of some person whose favour
the adverse possession is in.
- The difference between animus and discontinuance: you can discontinue someone’s
occupation of land without an intention.
Dundalk UDC v Conway
-
2. Physical possession without permission of the landowner
- You must prove that it is against the permission, or adverse to the wishes of the
owner
- If there is proof of permission, it will NOT be adverse ownership and there will be no
transfer of land.
Bellew v Bellew
- No adverse possession If possessor permitted to occupy land.
Battelle v Pinemeadow
- Adverse possession must be adverse
3. Demonstration of animus possidendi > intention to possess
- Intention to possess CONTRARY to the interest of the owner and to the EXCLUSION
of everybody else.
- However, you can have situations where someone is not aware that they are in
adverse possession – mistaken.
- This, under Irish law, can be enough to override the paper owners title.
Ingredients of animus posedendi.
1. Intention to physically hold or occupy the land.
2. To exclude all others
3. Positive intention to possess and NOT a negative intention to dispossess someone else
Cork Corporation v Lynch
- Animus and adverse possession
Murphy v Murphy
Kenny J
- Doctrine where a person in possession of land owned by someone else may have valid title
to it subject to
a) Certain common law requirements
b) In possession for a sufficient period of time as defined by statute of limitations (12
years)
• Ownership is a series of rights and ownership and possession are not the same. Possession is
a right that ownership covers.
• If you’ve got ownership > you can transfer a possession to someone else and still maintain
ownership. If you have land and transfer it to someone else, they have physical possession
now as they are physically on the land but this does NOT give them ownership.
• Possession and occupation are not necessarily the same thing, either.
• Possession:
- Physical control
- Intent.
• Title:
Lyall:
o Under older common law system, possession was a basis for title > a person who had factual
possession, had the right to remain in possession and this right was against anyone else
except for a person who could demonstrate better title.
o Better title then, was earlier title or paper title.
- Title is not absolute or ultimate
- It is relative
o If absolute, anytime there was a dispute you would have to produce the perfect title owner
but this is not how the law works
o Rather, there will be several claims to title and lawyers will determine who deserves it.
Lord Advocate v Lord Lovat
- The courts will have to consider the facts specific to the case where the concept of adverse
possession arises
STATUTE OF LIMITATIONS 57
S.13
2. (a)
➢ No such action shall be brought after 12 years from the date on which the right of action
accrued.
- other than dealing w/ state bodies, the length it takes for an adverse possessor to
get title to land is 12 years
- so paper owner has 12 years to challenge the adverse possessor.
- Accrual – when the adverse possessor adversely possesses the land – it has to be
against the wishes of the owner – ADVERSE.
, THE ELEMENTS NEEDED FOR ADVERSE POSSESSION
1. Discontinuation of paper owner’s possession
- Must show that paper owner no longer has possession
- Accrual will not begin unless the land is in possession of some person whose favour
the adverse possession is in.
- The difference between animus and discontinuance: you can discontinue someone’s
occupation of land without an intention.
Dundalk UDC v Conway
-
2. Physical possession without permission of the landowner
- You must prove that it is against the permission, or adverse to the wishes of the
owner
- If there is proof of permission, it will NOT be adverse ownership and there will be no
transfer of land.
Bellew v Bellew
- No adverse possession If possessor permitted to occupy land.
Battelle v Pinemeadow
- Adverse possession must be adverse
3. Demonstration of animus possidendi > intention to possess
- Intention to possess CONTRARY to the interest of the owner and to the EXCLUSION
of everybody else.
- However, you can have situations where someone is not aware that they are in
adverse possession – mistaken.
- This, under Irish law, can be enough to override the paper owners title.
Ingredients of animus posedendi.
1. Intention to physically hold or occupy the land.
2. To exclude all others
3. Positive intention to possess and NOT a negative intention to dispossess someone else
Cork Corporation v Lynch
- Animus and adverse possession
Murphy v Murphy
Kenny J
