Recent decision of the Irish Court of Appeal clarifies the law on adverse possession
The recent Irish Court of Appeal case Re: Patrick Hamilton v ACC Loan Management Limited, Declan Taite and John Coulston [2018] IECA 127 heard by Peart J., Hogan J. and Gilligan J, clarified the law on the area of adverse possession. The judgement of Mr. Justice Michael Peart delivered on the 3rd of May 2018 is relevant to anyone with an interest in Property Law.
The case also demonstrates the importance of promptly attending to legal formalities fully and completely upon the death of a landowner.
Summary of Judgement:
This case was an appeal from the High Court judgement of Mr. Justice Tony O’Connor (“the trial judge”), by the defendants, ACC Loan Management Limited (“ACC”) and its appointed receivers Declan Taite and John Coulston (“the Appellants”). The Appellants in this case challenged the trial judge’s declaration that Patrick Hamilton (the Plaintiff) was entitled by way of adverse possession to be registered as full beneficial owner of certain lands, which formed part of a larger holding of lands, over which ACC had security by way of a first legal mortgage and charge.
Background:
The dispute concerned a 28 acre section (“the Disputed Lands”) of family farmland. The Plaintiff’s late father, John Hamilton, died intestate on 25 June 1992 leaving his wife and five children surviving him, and his estate fell to be distributed pursuant to the provisions of Part VI of the Succession Act 1965. Simply put, Mrs. Hamilton was entitled to two thirds of her late husband’s estate, with the remaining one third being distributed in equal shares between Patrick Hamilton, (“the Plaintiff”), and his four siblings.
Even though the Plaintiff’s mother, Dympna Hamilton, obtained a Grant of Administration (Intestate) on 15 February 1993, it was not until some 13 years later on 25 October 2006 that she executed a Deed of Assent, vesting the entirety of the Deceased’s property in herself, rather than to herself and her children in the shares to which each was entitled by law on intestacy, including the Disputed Lands.
The key question in the case was not the length of the Plaintiff’s occupation, but rather whether his occupation of the Disputed Lands following the death of his father came within the meaning which the law attributes to “adverse possession”.
On 26 October 2006, the day after vesting all of the lands by Deed of Assent to herself, Mrs. Hamilton, then as beneficial owner, transferred part of the land (including the Disputed Lands) to her son, the Plaintiff’s brother, Séan. The purpose of this transfer was to enable Séan to use the lands as security for a loan from ACC Bank. The Plaintiff was unaware of this and continued to farm the lands as his own, until two bankruptcy receivers appointed over Séan’s estate (the second and named Appellants) advertised to sell the Disputed Lands.
In the High Court, it was held that the Plaintiff was entitled by way of adverse possession to be registered as full beneficial owner of the Disputed Lands.
Court of Appeal Judgement:
In his judgement delivered on 3rd May 2018, Mr. Justice Peart referred to the High Court judgement, where O’Connor J. had considered two questions identified by Clarke J. in Dunne v. CIE, wherein he usefully examined in some depth the earlier authorities, such as the judgement of Laffoy J. in Tracy Enterprises Macadam Ltd. vs Thomas Drury [2006] IEHC381 ,the dicta of Barron J. in Seamus Durack Manufacturing Ltd. v. Considine (1987) IR677, and the judgement of O’Hanlon J. in Doyle vs O’Neill (unreported High Court 13 January 1995,O’Hanlon J.). The general principles set out in the judgement of Slade L. J. in Powell v. McFarlane [1979] 38 P&C.R. 452 were also referred to, as well as the judgement of Costello J. in Murphy v. Murphy [1980] I.R.183 and he surmised that the nature of the possession which must be established, as one which must be objectively viewed, by reference to the land concerned and to the type of use which one might reasonably expect a typical owner to put those lands to.
Peart J., in the context of the appeal, was satisfied that the trial judge in the High Court was correct to conclude that the Plaintiff was in factual possession of the Disputed Lands and that he had the necessary intention to possess the lands.
Peart J. considered whether the de facto possession or occupation of the lands in question by the Plaintiff, interrupted certain acts done by Mrs. Hamilton, such that the Plaintiff’s occupation of the lands was not continuous throughout the 12 year limitation period.
Peart J. also considered whether there was any act of possession, however slight, by Mrs. Hamilton during the period of 12 years following her husband’s death in June 1992, which could be considered to have interrupted the Plaintiff’s otherwise exclusive and single possession of the land, such that there was not continuous possession for the required period. Peart J. again reiterated that the judgement of Clarke J. in Dunne v. CIE asked the correct questions for the purposes of determining the issues in this case.
He concluded that the Defendant’s occupation of the land during the twelve year period was adverse to the title of the true owner and that Mrs. Hamilton had taken no steps during that period to interrupt that possession.
On that basis, he dismissed the Defendant’s Appeal.
Joan Byrne
O’FLYNN EXHAMS
For more information on how O’Flynn Exhams can advise you on your Real Estate transaction, please contact Joan Byrne at jb@ofx.ie or +353 21 4277788.