Court verdict illustrates need for clarity in relation to the ownership of land
Bank loses court appeal against farm adverse possession by ‘squatter’
The law on adverse possession was recently dealt with in the Irish Court, in the appeal in the case of Hamilton v ACC Loan Management Ltd and Others (2018).
Adverse possession, as it is known in legal terms, (otherwise known as “squatter’s rights”) allows a third party to claim a right over land which is registered in the name of another person, on the basis that they have occupied the land continuously for over 12 years, with the intention of excluding all others, including the true owner.
Adverse possession means possession of land inconsistent with the title of the true owner.
In order to bring a successful claim for adverse possession, the person making the claim needs to be in sole and exclusive occupation and possession of the land for 12 years or more.
The person making the claim must exclude others, including the registered owner, from the land for over 12 years.
An application for adverse possession can be made to the Property Registration Authority or through the courts.
In the Appeal in the case of Hamilton v ACC Loan Management Ltd and Others (2018), the facts were, that in 1992, a Mr Hamilton Sr died intestate, leaving his wife and five adult children (including the plaintiff, Patrick Hamilton, who was the only child with an interest in farming).
A grant of letters of administration (intestate) of the estate was taken out by Mrs Hamilton in 1993, and the 100 acres of farmland fell to be distributed.
Before his father’s death, Patrick Hamilton and his father had farmed the relevant lands together, and he continued to do so following his father’s death.
Mrs Hamilton transferred certain lands, including the “disputed lands”, to her son, Sean.
Sean had been granted a loan of €248,000 from the defendant (ACC) to assist with buying six acres of land, which had originally been part of the farmlands owned by the Hamiltons.
The security required was a mortgage over 31 acres of land, 25 of which were the lands transferred to Sean by Mrs Hamilton.
Patrick Hamilton had given evidence that he knew nothing of the transfer to his brother Sean until 2013, when a “for sale” sign was erected on the disputed lands on behalf of bankruptcy receivers appointed over Sean’s estate.
Following the appointment of receivers by the bank, attempts were made on behalf of the receivers to take possession of the relevant lands, and the receivers entered into a contract for the sale of these lands to a third party.
In the High Court in 2016, Patrick Hamilton was granted a declaration that he is entitled to be registered as full beneficial owner of lands in Monaghan by virtue of his adverse possession since his father died in June 1992.
The court looked at two factors:
n Whether there is a continuous period of 12 years during which the plaintiff was in exclusive possession of the relevant lands, to an extent sufficient to establish an intention to possess the land itself, rather than to fulfil some joint enterprise or other agreement with Mrs Hamilton?
n Was the intended period of possession broken by an act of possession by Mrs Hamilton?
The matter was then appealed by the bank to the Court of Appeal. In his judgment in the Court of Appeal, Mr Justice Peart stated nobody else was in possession of the land with Patrick Hamilton, and he alone occupied the land.
Evidence of this included the fact he had his cattle on the land, and had his own herd number, he applied for various grants and payments, and he was the only child with an interest in farming.
It was concluded that he treated the lands as his own lands and did so for the required period of 12 years, and that he had the necessary intention to possess the lands to the exclusion of all others, and that this was not a case where his possession of the land was temporary or sporadic, but it was permanent and exclusive, and he had the necessary level of physical control over the lands.
Mr Justice Peart then considered whether there was any act of possession by Patrick Hamilton’s mother during the period of 12 years following her husband’s death in 1992, which could be considered to have interrupted Hamilton’s otherwise exclusive and single possession of the land.
Mr Justice Peart concluded that there wasn’t.
If you believe you have a potential claim for adverse possession or that somebody may be occupying your lands against your wishes, it is strongly recommended you get legal advice from a solicitor.
