Adverse Possession

Miranda7

Hi, I am writing a piece of fiction which involves a Court Case about Adverse Possession of a house. I know the rules (12 years occupancy adverse to the real owners title) but I don't know what goes on in court. I haven't been to a Court Case regarding this situation. Could any of you legal eagles enlighten me.
I think it is at least Circuit Court but is it perhaps High Court.
I would be grateful for any help on this issue.
Thanks Miranda.
Not sure if this this the correct forum.

dermot_sheehan

Normally the Plaintiff would issue and serve an Equity Civil Bill seeking an injunction to restrain trespass (if the person in occupation is a trespasser), or an Ejectment Civil Bill on the Title seeking an order for possession (If the person in occupation is a licencee/tenant at will/overholder).

The Defendant would enter an appearance and then a defence, in their defence they would plead that the cause of action is barred by the Statute of Limitations.

Either party can seek further particulars about the other side's claim and seek discovery of documents relevant to the claim, on the first instance by writing to the other side, if they don't agree by applying to court by notice of motion.

The case is then setdown for trial, and the Circuit judge issues his or her decree (either granting the injunction/order for possession or dismissing the case).

If an injunction restraining trespass is granted, the defendant would be served with a copy of the order and if they continue to trespass, the plaintiff would apply to have them committed to prison by notice of motion for contempt of court.

If an order for possession is granted, the Sheriff (in Dublin City and County or Cork City and County) or the County Registrar arranges for bailiffs to go to the property and hand over possession to the Plaintiff.

There is an appeal to the High Court, which is in Dublin if it is the Dublin Circuit or else the next sitting of the High Court on circuit if it is outside Dublin.

The person in adverse possession can also issue proceedings as Plaintiff in an action to quiet title (i.e. to determine title to the property).

If the property is registered land, copies of the Circuit Court decrees are sent to the land registry at the end of the action and the land registry is updated.


The court would nearly always be the Circuit Court, the High Court is only used if the rateable value of the land is more then €254. Only a very small number of commercial properties would be in the High Court jurisdiction.

Miranda7

Hi gabhain. Thanks a mill for the reply. In my story it is the person in Adverse Possession who has issued proceedings. I have no experience of court is am wondering if the decision of the Circuit Court is handed down on the day or if the parties have to wait a number of weeks before hearing the decision.

johnnyskeleton

Miranda7 wrote: »

In my story it is the person in Adverse Possession who has issued proceedings. I have no experience of court is am wondering if the decision of the Circuit Court is handed down on the day or if the parties have to wait a number of weeks before hearing the decision.

Usually on the day, unless there is a complex point of law or fact. I don't think it would be particularly common for someone in adverse possession to issue the proceedings - it is more usual as a defence to proceedings for repossession that the proceedings are barred by the statute of limitations.

A person in adverse possession would only be able to seek limited reliefs such as a declaration on the title.

Miranda7

Hi Johnny,

The person in adverse possession is taking the case because she got locked out. She got an injunction preventing the sale of the house until the matter of adverse possession was decided and then she went for adverse possession. I think this could occur in real life. Do you.
Cheers,
Miranda.

dermot_sheehan

Perfectly possible for a person to seek an injunction in those circumstances. They would also ask the court to declare that they have title to the premises and they can lodge such a decree in the land registry to establish their title in future.

Normally a judgement is issued on the day, it is rare for reserved judgements to take place in the circuit court.

Miranda7

Thanks Gabhain. That's very helpful.
Miranda7

johnnyskeleton

Miranda7 wrote: »

Hi Johnny,

The person in adverse possession is taking the case because she got locked out. She got an injunction preventing the sale of the house until the matter of adverse possession was decided and then she went for adverse possession. I think this could occur in real life. Do you.
Cheers,
Miranda.

Not so sure about that.

Rather than get an injunction preventing the sale (arguably a person can still sell the fee simple to a property even though they are not in possession, although it would be of fairly limited value) they could register a caution if registered land. If unregistered, the vendor would have to demonstrate vacant possession of the property, so if the person can claim adverse possession then it would make it difficult to sell.

Whether the court could grant an injunction to prevent the sale of the underlying legal title is a different matter. If it was sold before the adverse possession claim was dealt with, the purchaser would simply take over the land subject to the adverse possession claim.

There are a few levels of adverse possession. The first is the 12 year point at which if the landowner has delayed in seeking possession they are barred by the statute of limitations. The next is something like 20 years where the title can arguably be sold on to someone else. The third is that for registered land, you can register your adverse title after c. 30 years and AFAIK this is as good as any other title.

A declaration of good title could arguably happen where there are two competing claims to the land, which arguably only arises in the second scenario. In the first the adverse possesser doesn't have any positive rights, they merely have a good defence to a possession action. And in the third category, they can register the title with the registry of deeds and it would only go to court if it was disputed at that stage.

As to being locked out, a person in adverse possession could be locked out at any stage up to the 12 year point. If it happened after the 12 years, I suppose her claim would be more to prevent further trespass to the land rather than to positively assert adverse possession i.e. if you are entitled to possession of property your action would be more to prevent other people interfering with that possession rather than to get a declaration that you are entitled to that possession, although it would be part of the proofs of the case to show that you have been in adverse possession for the requisite time.

Maybe a mandatory injunction to remove the lockout obstructions and an injunction restraining any further trespass to the land would make more sense. Particularly if the person in possession is not seeking to sell the land and are merely seeking to prevent being locked out.

Then again, I suppose for the purposes of a novel the details don't make much of a difference, and any unusual aspect of the matter could be explained by the character's comprehension of what the case is about i.e. they would usually do what their lawyers advise them to do.

dermot_sheehan

johnnyskeleton wrote: »

Not so sure about that.

Rather than get an injunction preventing the sale (arguably a person can still sell the fee simple to a property even though they are not in possession, although it would be of fairly limited value) they could register a caution if registered land. If unregistered, the vendor would have to demonstrate vacant possession of the property, so if the person can claim adverse possession then it would make it difficult to sell.

Whether the court could grant an injunction to prevent the sale of the underlying legal title is a different matter. If it was sold before the adverse possession claim was dealt with, the purchaser would simply take over the land subject to the adverse possession claim.

A lis pendens would be effective for registered as well as unregistered land, of course the Plaintiff would have to initiate the main proceedings claiming title to register the lis pendens.

An injunction could be granted if the proposed sale would cause the person who has acquired the property by adverse possession irreparable harm. The only circumstances I could think of that happening is if a person acquired registered property by adverse possession, and then left occupation of it and the registered owner attempted to sell it. s. 72(j) of the Registration of Title Act would not kick in then to have the purchaser subject to the squatter's possessory title.

There are a few levels of adverse possession. The first is the 12 year point at which if the landowner has delayed in seeking possession they are barred by the statute of limitations. The next is something like 20 years where the title can arguably be sold on to someone else. The third is that for registered land, you can register your adverse title after c. 30 years and AFAIK this is as good as any other title.

A declaration of good title could arguably happen where there are two competing claims to the land, which arguably only arises in the second scenario. In the first the adverse possesser doesn't have any positive rights, they merely have a good defence to a possession action. And in the third category, they can register the title with the registry of deeds and it would only go to court if it was disputed at that stage.

A plaintiff can bring a claim seeking a declaration that the original owner's claim is statute barred at any stage after the 12 years (30 in case of state land).

The 20 years only refers to the fact that conveyancing practice for unregistered land ascribes good root of title if you can show ownership for 15 years.

The land registry has it own rules as to when it would consider possessory title long enough to be registered. A circuit court decree in proceedings between the squatter and registered owner declaring the squatter to have title to the land could of course be lodged to have the squatter registered as owner.

As to being locked out, a person in adverse possession could be locked out at any stage up to the 12 year point. If it happened after the 12 years, I suppose her claim would be more to prevent further trespass to the land rather than to positively assert adverse possession i.e. if you are entitled to possession of property your action would be more to prevent other people interfering with that possession rather than to get a declaration that you are entitled to that possession, although it would be part of the proofs of the case to show that you have been in adverse possession for the requisite time.

You are presuming that the person in adverse possession is a trespasser. They may be an overholder in which case locking them out would itself be a trespass. The appropriate remedy is to issue ejectment proceedings in such circumstances. After 12 years the person in occupation has better title to the land then the registered owner any attempt to lock them out even if they initially entered the property as a trespasser would itself be a trespass for which an injunction can be got to restrain.

Maybe a mandatory injunction to remove the lockout obstructions and an injunction restraining any further trespass to the land would make more sense. Particularly if the person in possession is not seeking to sell the land and are merely seeking to prevent being locked out.

Then again, I suppose for the purposes of a novel the details don't make much of a difference, and any unusual aspect of the matter could be explained by the character's comprehension of what the case is about i.e. they would usually do what their lawyers advise them to do.

Miranda7

Thanks guys. All of the above information is very useful and I am finding your debate very interesting as well. I think I have written a fairly credible account of the Court Hearing, based partly on what you guys have said but you're right, I don't intend going into any complex legal argument as this novel is quite light weight and while I don't want to make any basic mistakes about the legal issue neither do I intend going into complex legal questions.

Another quick question which you may be able to help with. If a woman is claiming that a particular man is the father of her child can she force him to have a DNA - say by a Mandatory Injunction or is there another.

Thanks again for all your help.
Miranda.

johnnyskeleton

Miranda7 wrote: »

Thanks guys. All of the above information is very useful and I am finding your debate very interesting as well. I think I have written a fairly credible account of the Court Hearing, based partly on what you guys have said but you're right, I don't intend going into any complex legal argument as this novel is quite light weight and while I don't want to make any basic mistakes about the legal issue neither do I intend going into complex legal questions.

Another quick question which you may be able to help with. If a woman is claiming that a particular man is the father of her child can she force him to have a DNA - say by a Mandatory Injunction or is there another.

Thanks again for all your help.
Miranda.

She can't force him, but if he refuses the court can draw inferences from his failure to give a sample.

Miranda7

Thanks Johnny. You're a saint. I'll invite you to the launch!!!!!

FreudianSlippers

Miranda7 wrote: »

Thanks Johnny. You're a saint. I'll invite you to the launch!!!!!

Oh, now I'm regretting not contributing :P

Miranda7

Too Late!!! Too Late!!

Miranda7

Hi People, My novel has been published and I think I offered to invite some of you to the launch. Unfortunately there will not be a launch at present but it might come during the summer. Anyway you can access the information about the book on my facebook page which is at https://www.facebook.com/MirandaManningWriter. You can like the page if you are on facebook and could can buy the book in any good bookshop and/or on Amazon. It has been described by the independent as highly original with an undertone of menace while another reviewer which has not yet published her review said she loved it and that it was very different and difficult to categorise, not chicklit and not a thriller, just different.
Thanks to those of you who helped when I asked questions.
~Regards,
Miranda.