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Under the Doctrine of Adverse Possession, real estate can be acquired by a party which does not have registered title to the land.
In order to acquire real estate by Adverse Possession, the party must demonstrate they have been in possession of the land for a specified time period. Subject to certain exceptions, the requisite time period is twelve years, as set out in the Limitation (Northern Ireland) Order 1989. The party claiming Adverse Possession must demonstrate they have been in possession of the land for a minimum of twelve years, without permission.
Making a claim for Adverse Possession is two-fold and the burden of proof rests on the party claiming possession.
Firstly, the party must establish they have factual possession of the land. Whilst this can vary from case to case, the party must prove they have physical control of the land and that they have dealt with the land as though they were the registered owner.
Secondly, the party must demonstrate they have the requisite intention to possess the land.
The case of St Patrick’s Archdiocesan Trust Limited v Patrick Ward and Margaret Ward (2018) heard by the High Court of Northern Ireland sets out the law governing Adverse Possession. In this case, the Second Named Defendant had removed a fence to the rear of her property so that it encroached into a neighbouring field. The Second Named Defendant then fenced off the encroached area, before filling it with quarry dust and using it to store commercial utility vehicles. Although the new fence had only been erected by the Second Named Defendant in August 2017, she argued she had undertaken activities on the land since 2004. This included filling parts of the land with hard-core and lifting rubbish from the field.
The Court held that such activities were trivial acts and that the Second Named Defendant had failed to demonstrate she had been in occupation of the land for twelve years.
Moreover, evidence that the registered owner had paid for maintenance of the land at the request of the Second Named Defendant, demonstrated she lacked the requisite intention to possess. Citing the case of Pavledes v Ryesbridge Properties Limited (1989), the Court observed that a party “cannot validly claim himself to be in adverse possession as against persons whom he actively requested to shoulder the responsibilities that possession has”.
The Court also considered the undertaking of agricultural activities on land and how this can impact upon a claim for Adverse Possession. Citing the case of Gallagher v NIHE (2010), the Court noted that “mere grazing without other acts of possession” may not be sufficient to establish a claim for Adverse Possession. This demonstrates that isolated activities may not be sufficient to demonstrate the requisite intention to possess.
In summary, a party claiming Adverse Possession must provide sufficient evidence to the Court in order to make a successful claim. The cases considered above demonstrate a high standard of proof is required to establish factual possession and an intention to possess. As set out in the case of St Patrick’s Archdiocesan Trust Limited v Patrick Ward and Margaret Ward, uncontroverted evidence must be provided to substantiate a party’s claim.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Real Estate Disputes team at Cleaver Fulton Rankin for further advice or information.