All about Land

Adverse Possession

Grazing animals without permission on another person’s land is not of itself sufficient to ground an application based on adverse possession.

In order to succeed in a claim based on adverse possession, it is necessary to show that the true owner was excluded from the property. Grazing (or other profits á prendre, such as cutting turf or bee-keeping) are considered to be equivocal acts of possession, since they do not exclude the true owner from enjoyment of the land.

It is, indeed, unnecessary for the true owner to graze the land himself or make any industrial or agricultural use of it to enjoy it. Nor do the legitimate grazing-owners have to exercise their rights in order to maintain them.

A person claiming adverse possession would have to have acted in such a way that enjoyment of the property by the legitimate owners was not possible, for example to build on the land or to use it for some agricultural purpose that would exclude the possibility of grazing or of the freehold owner walking the land.

Prescription

The law of prescription was simplified by the Land and Conveyancing Law Reform Act 2009, which now requires 12 years’ uninterrupted user, as of right, against a person of full age and sound mind, of which 3 must have elapsed since the passing of the Act, or 30 years against a person under disability or the State.

Application is not made directly to the Land Registry for the registration of a right so acquired. Instead, application is made to Court for a declaration that the right has been acquired, and registration is made in the Land Registry pursuant to the Court Order.

Prescription prior to 2010

Prior to the Act, the law was complex, and governed by 3 separate Doctrines:
• Common Law;
• Doctrine of Lost Grant, and
• Prescription Act 1832.

The Prescription Act came into its own only where 60 years’ possession had been enjoyed. Otherwise, it only modified the operation of the other 2 doctrines.

The Rule at Common Law requires exercise of the rights from time immemorial. As a result, claims are usually made under the Doctrine of Lost Grant. This requires proof of the existence of user for living memory or 20 years, providing it is not shown that the grant could not have been made. The Prescription Act comes in to the aid of the claimant by providing that the claim can’t be defeated by showing only that it was first enjoyed less than 30 years previously.

In short, a claim to have acquired grazing rights by long user, prior to the Land and Conveyancing Law Reform Act 2009, would normally require a minimum of 30 years’ uninterrupted user “as of right.” There might be rare cases, as Counsel might advise, where 20 years would be sufficient.

As with cases arising after the Act, the right would be established in Court and the court order submitted to the Land Registry.