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Property Law

Registration of Ownership of Property Based on Adverse Possession/Squatter’s Title-the Basics

adverse possession ireland

Have you lived in a property for a considerable period of time and now want to be registered as owner of that property with the Property Registration Authority?

Adverse Possession/Squatter’s Rights

One way to do this is by “adverse possession/squatters rights”.

Section 13 of the Statute of Limitations act, 1957 provides that no action to recover land can be taken at the end of a period of 12 years, unless there was established fraud, mistake, or disability.

The two relevant rules are rule 17 and rule 45 of the Land Registration Rules, 2013.

Rule 17 of the Land Registration Rules, 2013 provides:

Application for first registration based on possession

Where an application for registration of ownership of property is based on possession, or where the applicant has no documents of title in his/her possession or under his/her control in relation to such property, and the Authority is satisfied on inquiry or otherwise that the applicant is in possession or in receipt of the rents and profits of the property, the application may be made in Form 5, with such modifications as the case may require.

Therefore, to succeed with an application to the Property Registration Authority you must prove

  • Dispossession or continued dispossession of the owner
  • Adverse possession taken by you
  • Continued adverse possession for at least 12 years
  • No disability, mistake, or fraud exclusion to your claim.

The dispossession of the true owner must show an intention to exclude the true owner from enjoyment of the property and the possession must be inconsistent with the owner’s enjoyment of the land.

Unregistered Land

Applications for first registration of a freehold interest in unregistered land are made in form 5. (Applications in respect of registered land in form 6.)

The application for a freehold interest in unregistered land based on adverse possession/squatter’s title requires documentary title of at least 15 years starting with a good root of title and showing

  • The person entitled to the property on the date of dispossession
  • That person’s interest on that date
  • Evidence that possession taken was adverse.

You must show that the property has devolved to you and if you claim in succession to others you will have to show who they were, how they acquired their interest, and have written documentation to support your assertions. If you claim to have acquired some of your interest by adverse possession you will have to show the names and addresses of the people against whom you make that claim.

Proofs required

A summary of the proofs you will require include

  • Proof of adverse possession for at least 12 years. This will require an affidavit from you, corroborating affidavits from neighbours, documentary records and vouchers, etc
  • A PRA approved map
  • A general valuation office certificate
  • Details of all rated occupiers during the period of adverse possession and details of all persons registered as owners during the period of adverse possession
  • Death certificates, where necessary
  • Tax clearance certificate from Revenue Commissioners in respect of CAT (Capital Acquisitions Tax)

Registered Land

Section 49 of the Registration of Title Act, 1964 allows for this:

Registration of title acquired by possession.

49.— (1) Subject to the provisions of this section, the Statute of Limitations, 1957, shall apply to registered land as it applies to unregistered land.

(2) Where any person claims to have acquired a title by possession to registered land, he may apply to F62 [ the Authority ] to be registered as owner of the land and F62 [ the Authority ], if satisfied that the applicant has acquired the title, may cause the applicant to be registered as owner of the land with an absolute, good leasehold, possessory or qualified title, as the case may require, but without prejudice to any right not extinguished by such possession.

(3) Upon such registration, the title of the person whose right of action to recover the land has expired shall be extinguished.

(4) Section 24 of the Statute of Limitations, 1957, is hereby amended by the substitution, for “section 52 of the Act of 1891”, of “ section 49 of the Registration of Title Act, 1964”.

Rule 45 of the Land Registration Rules 2013 provides:

Title to registered property acquired by possession
45. Pursuant to Section 49 of the Act, any person claiming to have acquired a title by possession to registered property may apply for his/her registration as owner in Form 6 with such modifications as the case may require. The Authority if satisfied that the said person has acquired the title, may register the applicant as full owner with absolute, good leasehold, possessory or qualified title, as the case may require.

Special Cases

Unproved wills

Strictly speaking, possession on foot of an unproven will is not “adverse possession”. Nevertheless, a section 49 application may be accepted by the PRA if possession of at least 12 years is shown.

Spouses

A person cannot be in adverse possession to his/her spouse.

Lost Deed Possession

This is not adverse possession either, but a section 49 application may be used and accepted by the PRA.

Possession by Personal Representatives

A personal representative, since the commencement of the Succession Act, 1965, could bar the beneficiaries by 6 years’ adverse possession.

Action by Personal Representative

An action can be taken by a per rep of a deceased landowner seeking recovery of land has 12 years to bring the action to recover.

Next of Kin

A next of kin, with an entitlement to a share in an intestate estate, can bar the rights of other next of kin by adverse possession.

Section 125 of the Succession Act, 1965 states that where two or more persons enter into possession of land they shall be deemed to have entered and acquired title by possession as joint tenants as regards their own shares and the shares of the other next of kin who do not enter.

The Supreme Court case Gleeson v Feehan [1997] 1 ILRM 522 held that “the possession of lands by members of the family who had remained thereon was at all times adverset to the title of the true owner, the President of the High Court, in whom the entire estate in the lands was vested pending the raising of representation, and as they had been in possession for over 12 years, had acquired a title to the land as joint tenants”.

Relevant Sources

Land Registration Rules 2013

Adverse Possession – Title by Adverse Possession to Registered land guide from Land Registry

Statute of Limitations, 1957

Registration of Title Act, 1964

Categories
Debt Problems | Bankruptcy Property Law

Repossessions of Properties Halted by High Court Judgment

Many hard pressed homeowners, fearful of losing their homes as a result of being unable to repay their mortgages, have been handed a lifeline by a High Court decision in July 2011 by Ms Justice Dunne.

Background

Prior to the implementation of the Land and Conveyancing Law Reform Act 2009  lenders relied upon section 62(7) of the Registration of Title Act 1964 to apply to Court to seek a possession order when the borrower had defaulted on his loan.

The decision of Ms Justice Dunne that section 8 of the Land and Conveyancing Law Reform Act 2009   repealed section 62(7) of the Registration of Title Act 1964 means that lenders can no longer rely on section 62(7).

Since the Land and Conveyancing Law Reform Act 2009 came into effect on the 1st of December, 2009 the consequences of this decision and section 8 of the  Land and Conveyancing Law Reform Act 2009 are as follows:

  1. There is no right to apply to Court for an order for possession of property where the borrower entered into the mortgage prior to 1st December, 2009 and have fallen into difficulties after this date.
  2. The Land and Conveyancing Law Reform Act 2009 does contain provisions (in Chapter 3) similar to section 62(7) of the Registration of Title Act 1964 but this will only be of use to lenders and banks in respect of mortgages taken out after 1st December, 2009.

The implications of this decision are far reaching as many of the mortgages which would now be in difficulty would have been taken out prior to 1st December, 2009.

The decision of Justice Dunne arose when four cases, in which orders for possession were sought, were heard together-

  • GE Capital Woodchester Homeloans Limited v Michael and Sinead Grogan
  • GE Capital Woodchester Homeloans Limited v Colm Mulkerrins
  • Secured Property Loans Limited v Tom Clair and Mary Clair
  • Start Mortgages Limited v Robert Gunn and Maura Gunn [2011 IEHC 275].

The details of each case above were slightly different but all four cases involved the mortgage being taken our prior to 1st December, 2009.

Effect of High Court decision

The net effect of the decision in these cases is:

  1. Where the mortgage was taken out prior to 1st Dec. 2009 and go into default after that date the bank has no legal right to seek possession;
  2. Where the mortgage was taken out prior to 1st December, 2009 and no letter of demand was issued prior to this date there is no right to seek possession;
  3. Where the mortgage was taken out prior to 1st December, 2009 and legal proceedings were initiated prior to this date the bank can seek an order for possession;
  4. Where the mortgage was taken out prior to 1st December 2009 and the letter of demand for payment was sent out prior to this date the bank can seek an order for possession.

 

For the many people who are affected by this decision they now have more time to negotiate with their lender and more time in which to sell their property.

They may also find the lender more amenable to a “deal” as the bank will face the difficulty of being unable to seek an order for possession in these cases without the necessary amending legislation.

And in the current economic climate it could be argued that it would be a brave (or foolish) politician who would champion the necessary amending legislation.

Alternative Approach by Banks

Notwithstanding the decision above there is an argument to be made that the banks will not be completely stymied by this decision but may in fact have a legal cause of action arising from a simple breach of contract (the mortgage contract). It has been held by the High Court in the past (Gale v FNBS, 1984) that a mortgage contract gives the lender a contractual licence to enter and take possession of the property.

As with all matters to do with the law consult your solicitor for his/her advices for your particular circumstances.

If you have a question or concern, please use the contact form below. We respond within 24 hours, guaranteed.

UPDATE 2013

Kindly note that the above post was written in 2011; the gap or “lacuna”  in the law identified by Justice Dunne has now been closed by the government by way of legislation.