AP

Question 1

What are formalities

Answer 1

Formalities are legal requirements for something to be carried out in a certain way so that it has legal effect

Question 2

What is the main formality

Answer 2

Deeds
In history, deeds would have to be sealed with a wax seal but now as long as its titled a deed its considered one

Question 3

What leg talks about deed

Answer 3

Section 62 of LCLRA

Question 4

S62 of LCLRA

Answer 4

Legal estate or interest in land must be executed or conveyed by a deed.

Question 5

What leg is the exemption to this

Answer 5

S63 LCLRA

Question 6

S63 LCLRA

Answer 6

Section 62(1) does not apply to:
(b) a surrender or other conveyance taking effect by operation of law,
(d) a grant or assignment of a tenancy not required to be by deed,
(e) a receipt not required to be by deed,- one way in which mortgages can be created in equity is through depositing types of deeds for the land in question.
(g) any other conveyance which may be prescribed.

Question 7

Why do formalities exist?

Answer 7

Because the state has an interest in who controls land for tax implications- must be able to trace back who owns it so they can pay tax.
To officiate the better transfer of land.

Question 8

Who does formalities protect

Answer 8

vulnerable parties and consumer protection.

Anyone who enters into something that is enforceable in law

Question 9

Who does it disadvantage?

Answer 9

People who do not have the financial means to obtain legal advice.

People who have made an oral agreement- they are not legally enforceable

Question 10

What are the 4 types of informal acquisiton?

Answer 10

1. Doctrine of anticipation
2. Propriety Estoppel
3. Doctrine of prescription
4. Adverse possession

Question 11

1. Doctrine of anticipation
   State leg and explain

Answer 11

Walsh v Lonsdale: Equity anticipates the creation of a transaction after a contract has been formed prior to the deed being executed
Section 51 LCLRA

Question 12

2. Propriety Estoppel

Answer 12

In circumstances where there is detrimental reliance on a promise, it will give the injured party a right to the property.

Question 13

3. Doctrine of prescription

Answer 13

Provides for rights in land to be recognised through long use in practice
Eventually, the law will deem a right of property to be created through long use.
Examples: Easements- rights of way etc.

Question 14

4. Adverse possession

Answer 14

A legal doctrine that is an exception to the general requirement for formalities of how we sell/ transfer land.
Captures the idea of squatter rights- if someone uses someone else’s land and the owner of the land doesn’t try to stop them, the law says that ownership has shifted.

Question 15

Rationale for AP

Answer 15

Public policy: People should be paying attention to their land, because they may be superseded if they don’t.
In the feudal system, there was more land than people to work the land and this was an incentive for them to participate in active labour to help ameliorate the land.
Limitation periods exist for fairness- if we do something wrong and there’s a risk that someone might sue us, shouldn’t live under the shadow that there’s a chance that someone might sue us, there should be a specific time period as to when the person can sue you so you don’t have to live with such a burden of anticipation all your life.

Question 16

Unregistered land

Answer 16

Land that is more complicated to deal with legally because it is not entered to the land registry.
When dealing with unregistered land, the solicitor has to look back in time and identify a good chain of title.
The question is how far into the past should the solicitor look back to?
The Statute reduces the time frame: The period for adverse possession is 12 years.
Even if someone has a claim that goes back further in time, the claim is extinguished by adverse possession.

Question 17

Registered land

Answer 17

Concerns land that is entered into a state database- the land registry tells you who owns the land.

Question 18

what is the main leg on AP and what does it do

Answer 18

Section 13(2) of the statute of limitations
Provides the time in which a title holder can sue the possessor and repossess.
If time limit has past the title of title holder has deemed to be extinguished, but that doesn’t necessarily mean possessor gains title

Question 19

S13(2) of Statute of limitations act

Answer 19

Provides that the owner must sue within 12 years in relation to residential properties.
Provides that the state has 30 years to sue in relation to state-owned property.

Question 20

Key elements for AP

Answer 20

The title holder has to not be in possession- S14 of statute of limitations

someone else has to be in possession of the land- S18 Statute of limitations

Question 21

What is the criteria for AP

Answer 21

Owner has been dispossessed
Possessor gone int factual possession
Evidence of intent to possess

Question 22

Factual Possession key elements

Answer 22

A v C- No consent from title holder
Mahon O’Reilly- exclusive possession

Question 23

Intention to possess key elements

Answer 23

The possessor has the intention to possess the land to the exclusion of all others.
The courts tend to determine intention by looking for elements of factual possession.
You don’t have to go into an adverse possession scenario with some intention of clocking up the 12 years or have the intention to possess the land indefinitely.

Question 24

Factual possession cases name them

Answer 24

Murphy v Murphy
Mulhall v Brady
Doyle v O’Neill
Treacy enterprises v Drury
UDC v Conway
Dunne v Iarnroad Eireann
Udaras v Monk

Question 25

Murphy v Murphy

Answer 25

Facts: Dispute between 2 sons in regards to their mothers will. One son had been left land in the will by their mother and the other son was arguing that the mother didnt have the power to leave the property in the will because he had extinguished her rights to the land through adverse possession. Son had been farming the land, grazing cattle, made improvements to the property etc. Other son argued that his mother had been labouring under a misapprehension: she understood that the son working the land had been left that land in the fathers will and that she didnt have any right to object tot he sons use of the property.

Held: The fact that she didnt know she owned the land was immaterial- son in question had farmed land as the apparent owner and no evidence that the mother had asserted any claim and the 12 year period had run before her death. The right was extinguished and the son who had been left the land’s claim was null and void.

Question 26

Mulhall v Brady

Answer 26

Facts: Brady was the registered owner of land in question. He lived 4 miles from site and came to visit site 4-5 times a year but wasn’t actively using it. During the time the land was being used by Mulhern who was renting it our for cattle grazing. When he saw someone using the land he told them that they’re trespassing- Brady put notices around the site and had plans for its development.

Isuue: Had Brady exercised his rights over the property or has the factual possession of the occupiers of the land extinguished his rights?

Held: Brady had done enough to show his possession of the land- in contrast there wasn’t any obvious possession through adverse possession for the other side. Acts weren’t sufficient for a case to amount for factual possession.

Question 27

Doyle v O’Neill

Answer 27

Held: There must be clear acts of possession that sound alarm bells for the title owner, that somebody else is using their property.

Question 28

Treacy enterprises v Drury

Answer 28

Held: The courts should adopt a case-specific determination of factual acts of possession. In this case, the only evidence was clearing waste from a plot. These acts weren’t sufficient enough to send out a signal to that a piece of land was being occupied to the exclusion of others.

Question 29

UDC v Conway

Answer 29

Facts: Concerned land underneath the adjacent to a bridge owned by the council and the council faced a claim of adverse possession.

Held: Adverse possession was impossible because the land was incapable for use and enjoyment and so the clock couldn’t start running.

Question 30

Dunne v Iarnroad Eireann

Answer 30

Facts: Concerned a piece of land adjacent to Clondalkin railway station and the defendant claimed he had possessed land. He built stables on the land and a dispute arose.

Held: Provided that if there are any acts of possession by the owner, then adverse possession cannot run at the relevant time. The 2 parties are not on an equal footing. Once the title holder is asserting some sort of possessory rights, even if they are minimal, the clock won’t start running.
Court also pointed to a lack of exclusivity- children in the neighbourhood had also used the land to exercise their horses.
The courts did sympathise with Dunne and stated that although the defendants did not have a legal obligation to allow for possession, they could make an agreement with him.

Question 31

Udaras v Monk

Answer 31

Facts: Concerned unused land near the airport, part of it was owned and there were plans to develop it in the future.

Held: The adverse possession claim had failed because the claimant was concealing his activity, the titleholder wouldn’t have been able to get a signal that the land had been possessed.

Question 32

DAA examples of possession

Answer 32

Geographical surveying
Planning permission
Mowing lawn
Hedge trimming

Question 33

Other acts of factual possession

Answer 33

ACC bank v Hamilton- factual possession can be very minimal like getting farm payments

Byrne v Dublin CC- acts like family gatherings and fencing are sufficient for a possession claim

Question 34

Animus Possidendi and Factual possession

Answer 34

Powell v McFarlane

Held: Adverse possession involves intention to possess however, you cannot know what one is thinking/intending so the courts use evidence of factual possession to support this. Must also show the intention of excluding others.

Question 35

Inconsistent use doctrine
State 2 cases

Answer 35

Leigh v Jack
Buckinghamshire CC v Moran

Question 36

Leigh v Jack

Answer 36

Facts: Titleholder held some land and he intended to dedicate that land for use of public roads in the future but never took action.The claimant used the land for storage purposes.
The title holder argued that the storage usage was not adverse to his intentions for the property and therefore his title hadn’t been extinguished.

Issue: Could adverse possession exist in this circumstance?

Held: Ruled in favour of the titleholder. Stated that if you were trying to mount a claim for adverse possession, you had to be able to show that your possession was incompatible with their future plans of the property.
Set the bar very high from the perspective of someone trying to mount adverse possession claim.

Question 37

Buckinghamshire CC v Moran

Answer 37

Facts: Concerned plot of land that had been acquired by the council and it was going to be used to facilitate road use. It was adjacent to the defendants land so they started mowing the grass and trimming the hedge and when they sold the house, they contained that plot of land which was fenced and locked from the public.

Held: Obvious acts of possession couldn’t be defeated by the councils claim that they didnt need it at the time. The plaintiffs plans on how he wanted to use the land in the future could be used as a factor to consider but not a determinative factor.

Question 38

Intention to possess
state cases

Answer 38

Durack manufacturing v Considine
Cork Corporation v Lynch
Dundalk UDC v Conway
Feehan v Learny
Dunne v Iarnod eireann
Hamilton v ACC Bank
Ulster investment bank v Rockrohan

Question 39

Durack manufacturing v Considine

Answer 39

Facts: Farmlands including sheds were bought by the plaintiff with the intention being to build a factory on that land, but it never happened. The defendant who sold the land to the plaintiff continued to use the lands in the sheds and put fencing up etc.
The plaintiff who bought the land sought to recover the land from the defendant and an argument was brought before the courts.

Held: The fact that the defendant knew that the land wasn’t being used for the development of a factory was a fact that the courts could consider. However, they rejected the decision in Leigh and aligned with Buckinghamshire where it was held that obvious acts of possession couldn’t be defeated by the claim that the plaintiff didn’t need it at the time.

Question 40

Cork Corporation v Lynch

Answer 40

Facts: A corporation acquires a piece of land with the intention of eventually widening the road. The plot of land adjoined a garage that was owned by the defendant and operated as a business. The defendant started to use that land to leave crashed cars there until they were repaired and then to park cars when the repairs were completed. Lynch made improvements to the plot, surfaced it and eventually the council sought to recover possession of the land.

Held: 12 year period was met and clear possessory acts were carried out. However, the adverse possession claim failed because the intention of the council was to use the land for road widening and the defendant’s actions weren’t inconsistent with the plaintiff’s intention.

Question 41

Dundalk UDC v Conway

Answer 41

Held: Land under river not recoverable under adverse possession- inconsistency of use couldn’t be argued because the only use for it would be to fix the bridge that was over it.

Question 42

Feehan v Learny

Answer 42

Facts: Piece of land owned but not being used actively. The owner of the land went along to visit fit on a couple of occasions each year and would look in on the field. No cattle and wasn’t making any active use. Didn’t actually step onto the land during the visits.

Held: Plaintiff was doing everything he wished to do on that land so he couldn’t be deemed to be dispossessed. The title owner didnt want to do anything on the land so anything other people did on the land was not inconsistent with what the land owner wanted to do.
Illustrates the way in which the burden on the titleholder showing possession of the land is very limited.

Question 43

NB: Dunne v Iarnod eireann

Answer 43

Held: Inconsistency of use was a factor to be determined by the courts and not a determinative consideration.

Question 44

Hamilton v ACC Bank

Answer 44

Facts: The courts were asked to consider where one letter to the possessor of the land claiming adverse possession in relation to a leasehold estate could take over factual possession.

Held: it wouldn’t if there was good evidence of factual possession.

Question 45

Ulster investment bank v Rockrohan

Answer 45

Facts: Disputes that arose in relation to lands that had an outstanding mortgage. Default in the repayment of debt and the lender was entitled to sell the property. The borrower said that they were involved in a separate legal dispute and if they win that case, they’ll have the money to repay the mortgage. The bank allowed possession until the dispute took its course. Once the case had been resolved unsuccessfully, the bank sought to recover possession and sell it. The borrower then claimed adverse possession- no dispute on factual possession so it relied on the intention

Held: Possessors couldn’t have the intention to possess because everyone knew what was going on. It was a temporary forbearance/ act of compromise on the part of the lender - the clock couldn’t start running because there was no question of the possession being adverse to the bank’s interest.
The possessors were In occupation with the consent of the title holder.

Question 46

When will AP cease

Answer 46

The squatter vacates the property

Squatter gives written acknowledgement of the owner’s title (which causes time to run afresh)

The title holder grants squatter a licence/ tenancy

The title holder brings an action for possession against the squatter

Question 47

Can successive squatting exist?

Answer 47

Successive squatting is possible provided that there is no gap between squatter 1 and squatter 2’s possession.

Question 48

3 ways that stop/postpone time

Answer 48

Disability
Fraud
Acknowledgement

Question 49

Disabilty
Statute

Answer 49

If someone is under a mental disability or if they are a minor, the time period is extended.
This reflects the idea that they wouldn’t have had the capacity as a title owner to take action.
s49(1a) of statute of limitations act

Question 50

s49(1a) of statute of limitations act

Answer 50

If, on the date when any right of action accrued for which a period of limitation is fixed by this Act, the person to whom it accrued was under a disability, the action may, subject to the subsequent provisions of this section, be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired

Question 51

Fraud

Answer 51

Fraud/ concealment prevents the clock from starting.
Concealment: taking measures to prevent the titleholder from finding out about possession of their land.

Section 71 of the Statute of Limitations 1957

Question 52

Section 71 of the Statute of Limitations 1957

Answer 52

Where, in the case of an action for which a period of limitation is fixed by this Act, either:
the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or
the right of action is concealed by the fraud of any such person,

The period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.

Question 53

Acknoweldgement

Answer 53

The clock can be stopped through acknowledgement of the title.

Question 54

Acknowledgement statute

Answer 54

Section 51 of the Statute of Limitations Act 1957

Where:
(a)there has accrued to any person (other than a mortgagee) any right of action to recover land, and
(b) the person in possession of the land acknowledges the title of the person to whom the right of action has accrued,
The right of action shall be deemed to have accrued on and not before the date of the acknowledgement.

Section 58 (1) of the Statute of Limitations Act 1957

Every acknowledgement shall be in writing and signed by the person making the acknowledgement.

Question 55

Acknowledgement Can be Fact and Not Written:
State cases

Answer 55

Dooley v Flaherty
Minogue v Clare CC

Question 56

Dooley v Flaherty

Answer 56

Facts: Adverse possession dispute regarding a derelict property that was occupied. The dereliction wasn’t addressed and the premises was in a bad state of disrepair.
The title owner had access to the property for repair works on the roof, possessor had remaining access to the property but there was no proof of this. However, on one occasion, the defendant paid rent to the title holder.

Held: Payment of rent accounted as an acknowledgement of title. Suggested that the continued dereliction of the property suggested a lack of intention to possess, if there was intention to possess, better care would’ve been taken of the property.
The title holder only had to show minimal possession - roof fixtures were sufficient as an act of possession. Adverse possession claim failed in these circumstances

Question 57

Minogue v Clare CC

Answer 57

Facts: Rent had been paid in the past but was no longer paid.

Held: The court referred to this as indicating the beginning of intention to possess. Ceasing to pay rent while in possession of land will show intention to possess.