Adverse Possession Section 49 - Lodgement checklist

1. The following should be lodged:

(a) LR Form 6 with exhibits.

(b) PRA compliant Map where required.

(c) Fees of €130.

(d) Application Form incorporating LR Form 17.

(e) Capital Acquisitions Tax (Consolidation) Act, 2003 Certificate [Section 62(2) or 62(7)]

It is essential that Paragraph 2 of the LR Form 6 be comprehensive and detailed. This should include when the applicant entered into possession, the uses he made of the property and full setting out of the acts of possession. In addition it should trace the title to the property from the registered owner. It should state the names and addressed of all persons whom the applicant claims to have barred.

SECTION 49 APPLICATIONS

Your Questions answered:

What are the essentials to be lodged in a Section 49 application?

Application Form incorporating LR Form 17

Application in with any LR Form 6 exhibits (See the Land Registration Rules 2012)

Certificate required under Section 62 of the Capital Acquisitions Tax Consolidation Act 2003

A suitable map if subdivision is involved

What is the relevant legislation?

Statute of Limitations 1957

Registration of Title Act 1964 (Section 49)

Succession Act 1965 (Sections 123 to 127)

What is the role of the Property Registry Authority in respect of Section 49 applications?

These applications have been dealt with by the Property Registry Authority (formerly the Land Registry) since the coming in to operation of the Registration of Title Act, 1964, on 1st of January, 1967. Formerly, such applications based on long possession of registered land were made to the Court under Section 52 of the Local Registration of Title Act, 1891, and the Court, following service of such notices as directed, if satisfied with the facts as disclosed by the applicant made an Order declaring the title of applicant to be registered as owner of the lands on the appropriate folio and directed such registration to be made. In applications for registration of ownership of land based on long possession the proofs formerly required by the Court in applications under Section 52 of Registration of Title, 1891, are applicable.

When is a Section 49 application the appropriate form of application?

A Section 49 application is appropriate when an applicant is claiming entitlement to property on the basis of adverse possession of property thereby rendering the interest of the legal owners statute barred.

What is “adverse possession”?

A person may be deemed to be in adverse possession of property when he/she in sole exclusive occupation thereof without acknowledgement to the legal owner(s) and his occupation is inconsistent with the title of the true owner. Whether adverse possession can be deemed to exist depends on an examination of the facts and circumstances of each case.

What does “statute barred” mean?

When the title of a legal owner or person with a legal interest in property is statute barred it is permanently extinguished. This occurs when an applicant has been in possession for the required statutory period and the legal owner(s) has not, within that period, taken the required action to reclaim their rights.

What does “Animus Possidendi” mean?

This is the intention to possess the property and involves the intention to exclude the true owner.

How long does an applicant have to have been in possession to validly claim title under Section 49?

Under Section 13(2) of the Statute of Limitations a person in adverse possession acquires title after 12 years. In the case of a claim to the estate of a deceased person, under a Will or intestacy, Section 126 of the Succession Act provides that such claim is statute barred after 6 years. However, a personal representative of a deceased owner, steps into the place of that deceased owner and has 12 years to recover the property from any person in adverse possession, under Section 13(2) of the Statute of Limitations.

How long does it take to process a Section 49 application in the Property Registration Authority?

Notices must be served on affected parties and objections may ensue. A successful objection will prevent registration. Any objection will cause delays. It is therefore not possible to estimate how long any Section 49 application will take to process. Every effort is made to expedite applications where valid grounds for urgency exist.

How far back should the history of the title/occupation of the property be traced in a Section 49 application?

Section 49 applications deal with registered land. Examination of the legal title must commence with the registered owner. If the registered owner is deceased all available information on his/her successors of title must be furnished in the application. If adverse possession was commenced by a predecessor of the present applicant all available information about the persons in occupation since its commencement should be furnished.

What proofs of the applicant’s possession are required in a Section 49 application?

The notes as set out in paragraph 2 of LR Form 6 of the Land Registration Rules 2012 sets out in general the nature and extent of information required.

What names and addresses should be furnished in a Section 49 application for the purpose of service of notice?

Notices are usually served by the Property Registration Authority on the following categories of persons- Registered owners, the personal representative of registered owner and immediate next of kin if the registered owner died intestate.

All persons in occupation at the date of death of the registered owner, and their personal representatives, if deceased.

Persons other than those with barred legal or equitable interests may be considered for notice for example adjoining owners, tenants under an oral tenancy, occupiers of other parts of folio lands, owners of charges.

In the case of an application by a stranger on the title, notice is usually served on the adjoining owners.

In a case which is proceeding on the basis of an unproved will, any beneficiaries under the Will and also on the next-of-kin of the deceased testator as if he/she had died intestate.

When is lodgement of a map necessary?

A map should be lodged where the application is in respect of part only of a folio unless the property can be identified by reference to a plan number.

What does it mean if an application is refused?

Where the Property Registration Authority is not satisfied that the applicant has acquired title an order refusing registration can be made. This may arise because of a flaw in the application or proofs presented. However, refusals usually occur when there is an objection and conflicting claims are made by the parties. It is not the function of the Property Registration Authority to make a determination where conflicting claims arise. An order of refusal may be appealed to the courts under Section 19(1) of the Registration of Title Act 1964.

Is a certificate pursuant to Section 62 of the Capital Acquisitions Tax Consolidation Act 2003 required in every case?

Yes. Section 62 states that no person shall be registered as owner of property based on possession unless this certificate is produced. This is, therefore, a statutory requirement and the Property Registration Authority has no discretion in this matter.

Section 49 Sample Queries

1. Did the registered owner die testate or intestate? Was a grant extracted to his / her estate? Lodge evidence of his/her death. Please supply the names and addresses of those entitled to his/her estate under the Statutes of Distribution or under The Succession Act (entitlement under the Status of Children Act 1988 and Adoption Acts must be considered. Whether or not there was any issue of a predeceased child should be stated. Any Grant or unproved will must be lodged. Lodge original State death certificates in respect of all deaths on the title.

2. Please provide full detailed history of the parties against whom adverse possession is claimed and their successors including where appropriate, dates of death with proof of deaths, whether death was testate or Intestate, whether representation was raised, status married / single, Did the deceased leave children including predeceased children? Indicate whether any such predeceased children had issue.

3. Please note that where the statute is being claimed it must be proven. In this regard you are referred to the notes to paragraph 2 of LR Form 6 of the Schedule of Forms to the Land Registration Rules, 2012. Accordingly, in respect of each party against whom adverse possession is claimed please set out fully the precise time and circumstances of their permanent departure and their destination, e.g. on marriage, emigration, entering the religious life, hospitalisation, or whatever. Indicate if any party returned and if so provide full details of the circumstances of such return. The history of possession must be clearly shown from the date of death of the registered owner [if claiming through the registered owner] or from the date of entry into possession [if claiming against the registered owner] Where the applicant claims in succession to others, it must be shown who they were how they acquired their respective interest and how such interest devolved to the applicant.

4. State the names and present addresses of the Personal Representative(s) and the next of kin for the purpose of service of any notices deemed necessary.

5. State the names and present addresses of all persons or their successors known to the applicant who would but for the Statute of Limitations have any interest in the property or who might be concerned with the property in any way.

6. Please provide full details and give the full circumstances of the original entry into occupation of the property by . Show that his/her possession was adverse or became adverse. Show that he/she had the necessary animus possedendi. Please show that he/she did not occupy the property by permission, by agreement as caretaker, as a tenant or on any understanding with the registered owner.

7. State the use to which the applicant has put every part of the application property over the entire period claimed. State what acts of ownership were exercised by him/her, to what use and enjoyment he/she put the land and show how such acts of ownership and use and enjoyment amounted to exclusive possession.

8. Has the applicant and his/her predecessors in title been living on /in occupation of, the property since commencement of possession by them? Have any other persons been living on /in occupation the land or been in receipt of the rents and profits? Full details of all parties in actual possession of the application property and the basis for such possession must be provided.

9. Has the property been used by any other person for any purpose since commencement of possession by the applicant or his predecessors? If so, provide full details.

10. Has the applicant or his/her predecessors paid any rent to any person in respect of the application property? If so, when was the last such payment made. State the names and address of the person to whom such rent was paid.

11. Is the property securely bounded or fenced off from all adjoining property. What is the age nature and condition of such boundaries?

12. State the names and addresses of the owners and /or occupiers of all of the lands adjoining the application property.

13. Has the property been acquired by the applicant for use in conjunction with other property in the applicants possession? If so please provide the folio number of such property or if unregistered title, please indicate the location of such property and describe the applicant’s title thereto.

14. Lodge corroborating evidence on affidavit by an independent person relating to the possession of the applicant and his/her predecessors in title.

15. Lodge a certificate by the Revenue Commissioners pursuant to Section 62(2) of the Capital Acquisitions Tax Consolidation Act 2003 (formerly Section 146 of the Finance Act 1994) or, if appropriate, a solicitor’s certificate in the form prescribed by Section 62(7) of the Capital Acquisitions Tax Consolidation Act 2003 (formerly Section 128 of the Finance Act 1996.)

16. Lodge all documents of title in the applicant’s possession or control relating to the application property.