Battelle royale
The ‘Battelle principle’ should be kept in mind when advising clients who intend to assert title to lands by way of adverse possession in circumstances where an adjoining leasehold interest is already held by the client. Lesley O’Neill fences things off
The Battelle principle asserts that, where an applicant holds a leasehold interest in lands and claims an interest in adjoining freehold lands that have been encroached upon, the only interest that may be granted by a court in respect of the encroached freehold lands will be the right of possession of the encroached lands against the fee simple owner, but only for the unexpired portion of the term of the applicant’s lease.
In Battelle, the applicants/plaintiffs held a leasehold title in a residential property at Rathfarnham, Co Dublin. At the rear of the property, a small area of freehold land was retained by the defendant, which sloped downwards towards the Owendower River.
The applicants gave evidence that the rear freehold lands were overgrown and, having made enquiries with the defendants, began incorporating the overgrown freehold lands into their back garden.
The High Court heard evidence that the applicants cleared the overgrown lands, erected fencing, laid pathways, planted trees, installed garden lighting, and enclosed the rear freehold lands, and the court accepted that the applicants/plaintiffs had sole and exclusive possession of the plot incorporated, adverse to the interest of the freehold owner, having been satisfied that the applicants had:
- The necessary animus possidendi (that is, the intention to possess the property and the intention to exclude the true owner), and
- The requisite period of uninterrupted possession under the Statute of Limitations Act 1957 (in this case, 12 years), noting that section 13(2)(a) of the act provides that the requisite period is 12 years from the time of the accrual.
The High Court acknowledged, however, that “the title acquired [was] title by encroachment, that is, the right to possession of the premises in dispute against the fee simple owner for the unexpired portion of the term of [the] lease of the plaintiffs’ premises … the freeholder’s entitlement to the land in reversion upon expiration of the lease remaining undisturbed”.
Having granted a declaratory order in favour of the plaintiff/applicant, confirming title to the rear lands, by encroachment, the High Court awarded damages to the plaintiff/applicant, in respect of trespass caused to the rear lands by the defendant’s servants/agents who entered onto the rear lands, subsequent to the applicant’s incorporation and enclosure of the rear lands.
Squat thrust
Practitioners are, accordingly, urged to recall the principle laid down in Battelle when advising clients who assert title to lands by way of adverse possession (commonly called ‘squatter’s title’).
The utmost care must be taken when preparing the requisite Tailte Éireann (TÉ) Form 6, which questions whether “the property has (or has not) been used in conjunction with other property”.
Where an applicant positively asserts that the property has been used in conjunction with other property, then attention should be drawn to the (current) explanatory note 7 within Form 6, which states that “where the property has been used in conjunction with leasehold property owned by the applicant, the presumption of encroachment may apply and, if not rebutted, any interest acquired by the applicant is not registerable. It is up to the applicant to rebut the presumption”.
Practitioners will note, therefore, that where title to lands can only be established by way of encroachment, TÉ will not (unless the Battelle presumption is rebutted), register an interest in the ‘squatted’ lands.
The effect of this has evident implications in terms of the remediation and certification of title, and may present difficulties for funders.
The annex
In Battelle, the High Court asserted that there was a presumption that the encroached plot of lands was, in essence, viewed as being ‘annexed’ to the applicant’s leasehold lands – meaning that, on the termination of the lease, the encroached plot was “to be regarded as having accrued to the landlord’s reversion together with the demised premises”.
When preparing the submission of Form 5 affidavits, it is imperative that practitioners take full and comprehensive instructions from their client to discern not only whether the requisite tenets of adverse possession have been met, but also whether any element of encroachment is asserted or arises from the facts.
TÉ also advises that “particular attention should be given to the averments in LR Form 6, and the notes at paragraph 2 thereof, in relation to the facts to be proved by the applicant.
All the information as set out in the said paragraph 2 of LR Form 6 must be included in the application. Such applications only relate to registered land”.
Where an encroachment scenario does arise, practitioners should refer to the Battelle principle and conduct such searches and enquiries as would promptly enable the practitioner to (a) confirm the pre-existing title(s) held by the applicant, and (b) the title asserted by way of adverse possession, noting that the applicant may only be entitled to the right to remain in possession of the encroached lands until the expiration of the applicant’s lease, noting the policy of TÉ not to register any interest established by encroachment (unless the Battelle presumption is rebutted).
While the circumstances outlined in Battelle may present themselves irregularly and infrequently, an emerging practice towards the retention by certain landowners and developers of lands to the rear of a housing development (where residential units have been assured by way of lease, for example) may mean that the issue of encroachment as outlined in Battelle is one that may arise more habitually in the future.
Where developers retain rear lands in this manner, there is a further risk to the developer/landowner that the lands may be the subject of an adverse possession ‘squatter’s’ application at a future date.
While TÉ notes that “the Irish courts have interpreted [the question of possession of lands and acts of possession] liberally in favour of the dispossessed owner”, it remains incumbent on all developers/landowners to assert and exhibit such acts of ownership to prevent a potential ‘squatter’s’ claim being asserted via TÉ and/or the courts.
Lesley O’Neill is a solicitor at Blake & Kenny LLP, Galway.
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Lesley O’Neill
Lesley O’Neill is a solicitor with Blake & Kenny LLP, Galway