ADVERSE POSSESSION – A RISK WORTH TAKING?

Quite often, scenarios arise whereby an individual may seek to claim ownership of land that they are in possession of, but do not legally own. This is otherwise known as “Adverse Possession”, a doctrine which enables a party to acquire real estate that they do not have registered title to.

In these cases, the burden of proof will rest squarely with the party bringing the claim – that party otherwise known as, “the claimant” or “a squatter”. This article sets out the key legal principles one must establish to bring forward a successful possessory claim, and if this is indeed action worth taking.

There are four key elements to an adverse possession claim. The claimant, or squatter, will need to prove:

1. Uninterrupted factual possession of the land;
2. The necessary intention to possess the land;
3. That such possession is without the owner’s consent; and
4. That the above have been true of the claimant/squatter for at least 12 years prior to the date of the application to claim title.

Taking each of these tests in turn, the following will need to be considered:

1. Uninterrupted factual possession of the land:

The land in question must have been in the squatter’s factual possession for an uninterrupted period of at least 12 years and there must be a sufficient degree of exclusive physical control by the squatter over the land.

As derived in Powell v McFarlane (1977), Buckinghamshire County Council v Moran (1990) and affirmed by the House of Lords in J A Pye (Oxford) Ltd v Graham (2002, the person in possession must “have been dealing with the land as an occupying owner might have been expected to deal with it, and no one else must have done so”.

However, it should be noted that activities by a squatter such as grazing animals, cutting trees, maintaining fences, fencing the land off and clearing fallen timber for firewood may not be sufficient to constitute dispossession of the true owner, even if they made no use of the land. This is cited in the case of Gallagher (Noel) v Northern Ireland Housing Executive [2009].

2. The necessary intention to possess the land (“animus possidendi”):

In addition to factual and physical possession of the land, the claimant must demonstrate that they intended to possess the land during the period of possession.

This intention must be to possess the land in question to the exclusion of all others so far as is reasonably practicable and so far as the processes of law will allow – Powell v McFarlane (1977), Buckinghamshire County Council v Moran (1990);

Where a claimant is able to establish factual possession, the intention to possess will be satisfied from the acts making up the possession.

The key question one must consider is whether the squatter has been in possession of the land, in the ordinary sense of the word, for the requisite period of time (12 years) without the consent of the owner?

3. Possession without the owner’s consent:

In Buckinghamshire County Council v Moran (1990), Slade LJ explained:

“Possession is never ‘adverse’ if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner of the paper title.”

4. The Limitation Period:

Section 21 of the Limitation Order (NI) 1989 states:

“No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

The right of action accrues, and so the limitation period starts to run, from the start of the adverse possession.

An action worth taking?

Whilst there is an appeal for a claimant to bring forward a possessory claim to land, the case law considered in this article illustrates the high threshold that must be satisfied in order to establish factual possession and an intention to possess. This is consolidated further in the case of St Patrick’s Archdiocesan Trust Limited v Patrick Ward and Margaret Ward [2018] in which it was made clear that uncontroverted evidence must be provided to substantiate a party’s claim.

A legal assessment as to the merits of your case should, therefore, be sought and considered before proceeding further.

If you would like further information, please contact Neil McCracken or another member of the Real Estate team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.