Adverse possession and boundary disputes: lessons for Ireland from abroad

• Author: Una Woods
• Position: School of Law, University of Limerick, Limerick, Ireland
• Pages: 56-79

Adverse possession and

boundary disputes: lessons for

Ireland from abroad

Una Woods

School of Law, University of Limerick, Limerick, Ireland

Abstract

Purpose – This paper aims to examine the remedies currently available in Ireland to resolve boundary

disputes to assess the importance of the role played by adverse possession in this context. It also

examines the potential impact of certain reforms in this area of law.

Design/methodology/approach – The research methodology is primarily doctrinal, although a

comparative approach is adopted for the purposes of assessing whether certain lessons can be learned

from recent reforms to the English law on adverse possession and the Australian approach to resolving

boundary disputes, which relies heavily on mistaken improver and building encroachment legislation.

Findings – This paper demonstrates how the current law leaves certain mistaken improvers or

encroachers on neighbouring land without a remedy, as they cannot rely on the doctrine of proprietary

estoppel or adverse possession. If Ireland decides to replicate the English good faith requirement in

relation to adverse possession of boundary land, the remedial vacuum facing these mistaken improvers

or encroaching builders will become more pronounced. It is submitted that any such reform should be

supplemented by the introduction of legislation akin to that operating in Australia which would

facilitate the consideration of a broad range of factors and provide for exible remedies to resolve such

difculties. It is also submitted that the legislation imposing such a good faith requirement should be

carefully drafted to avoid the potential interpretative difculties associated with the English reforms.

Originality/value – Boundary disputes are an unfortunate fact of life. The prevalence of boundary

disputes and high costs associated with boundary litigation makes this review and critique of the

current law and potential reforms highly relevant.

Keywords Law, Reform, Adverse possession, Boundary disputes, Good faith, Proprietary estoppel

Paper type Research paper

1. Introduction

Boundary disputes between neighbours are “wretched affairs” (Childs v. Vernon [2007])

but an unfortunate fact of life. It has been argued that increased development and the

intensication of land use has led to a steady increase in such disputes, particularly in

urban areas (Royal Institute of Chartered Surveyors, 2014,p.3)[1]. Frequently, the seeds

of a boundary dispute are sown because a physical boundary does not correspond with

the legal boundary. One neighbour may treat the boundary plot as their own over many

years, exercising exclusive possession over it or using it to access or carry out repairs on

another part of their property. Sometimes, improvements are carried out on the plot or

buildings are erected which encroach onto the plot. One or both neighbours may be

aware of the true position of the boundary or mistaken in this respect. Occasionally, the

properties will change hands before the dispute comes to a head. Cascading

encroachments are particularly problematic, as the Baroness Scotland of Asthal

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/1756-1450.htm

IJLBE

8,1

56

Received 8 May 2015

Revised 13 October 2015

Accepted 15 November 2015

InternationalJournal of Law in the

BuiltEnvironment

Vol.8 No. 1, 2016

pp.56-79

©Emerald Group Publishing Limited

1756-1450

DOI 10.1108/IJLBE-05-2015-0010

explained in the parliamentary debates which preceded the passage of the Land

Registration Act 2002 in England and Wales:

One envisages, for example an estate with 20 houses, where all 20 houses are one foot in the

wrong position. Although 20 houses have got the direct proportions the owners thought

that they were buying, the man or woman on the end could say “You have got a bit of my

land”. To get his or her bit of land back, everyone would have to perform a very interesting

dance[2].

This article examines the various remedies available in Ireland to neighbours who are

embroiled in a boundary dispute to assess the importance of adverse possession in this

area. It begins by noting the benets of relying on Alternative Dispute Resolution

processes to reach a solution rather than resorting to litigation. The uncertainties

involved in identifying legal boundaries are outlined, before the role currently played by

adverse possession and other remedies in the resolution of boundary disputes is

discussed. It illustrates the current remedial vacuum which exists for certain people who

build or carry out improvements on their neighbours’ land in the mistaken belief that the

plot is their own.

Recently, concerns have been expressed in law reform circles in Ireland and

elsewhere in relation to the fairness of the doctrine of adverse possession, in

particular the way it enables the deliberate squatter who is fully aware that he is not

the owner of the land to acquire title to it. In England and Wales, a qualication to

the veto system of adverse possession introduced by the Land Registration Act 2002

preserves the operation of the doctrine for adverse possessors of boundary land who

satisfy a good faith or “belief in ownership” requirement. The Irish Law Reform

Commission (2005, para. 2.04-07 and pp. 322-339) proposed certain reforms to the

law on adverse possession which imposed a mandatory requirement for a court

application and restricted the operation of the doctrine to certain categories of

claimant, including good faith possessors of boundary land. The wording used in

the Irish proposals to describe this type of claimant mirrored that used by the Land

Registration Act 2002. These law reform proposals were jettisoned in response to

critical submissions made to the Irish Government by the Law Society’s

Conveyancing Committee, mostly related to the workability and increased costs

involved in the administration of the proposed scheme. However, the Irish Law

Reform Commission plans to revisit the matter of reform in this area of law in the

future. In this event, the introduction of a qualied veto system of adverse

possession is likely to be considered for Ireland. A discussion of the substantive

arguments in favour or against the introduction of such a reform is beyond the scope

of this article[3]. Instead, the primary aim is to consider whether the doctrine of

adverse possession should continue to play a role in the resolution of certain

boundary disputes. If the introduction of a qualied veto system of adverse

possession is proposed for Ireland, it will be necessary to consider whether a

qualication should be included to preserve the benet of the doctrine for certain

adverse possessors of boundary land and if so, how this qualication should be

formulated. Consequently, this article discusses the interpretative difculties which

the English good faith requirement may give rise to. It also reveals how this reform

exacerbates the remedial vacuum mentioned above, increasing the possibility that

mistaken improvers/encroachers on boundary land will be left without a remedy.

The conclusion reached is that if a qualication to the veto system of adverse

57

Adverse

possession

and boundary

disputes