High Court: Archdiocesan Trust granted summary possession of lands in adverse possession dispute
St Patrick’s Archdiocesan Trust have been granted an order for possession of a seven-and-a-half-acre field in Newry which was being used by a woman to keep ponies.
The woman, who has been a tenant in a house adjacent to the field since 2004, claimed that she and her husband were entitled to adverse possession of the land; however Ms Justice Denise McBride was not satisfied that the woman was in possession for 12 years, nor that the acts relied on by the woman were evidence of the necessary animus possidendi.
St Patrick’s Archdiocesan Trust Limited sought an order for possession of a 7½ acre field at St Martin’s Lane, Carnagat, Newry, County Armagh pursuant to Order 113 of the Rules of the Court of Judicature (Northern Ireland) 1980, on the ground that it is entitled to possession and that Margaret Ward, along with her husband Patrick Ward, were in occupation without a licence or consent. Mrs and Mr Ward responded that they were entitled to adverse possession of the lands, and that they had been in possession since 2004.
Ms Justice Denise McBride said that in order to determine an order for possession pursuant to Order 113, that it was necessary to consider:
- The test for making an order pursuant to Order 113;
- The law relating to adverse possession;
- Whether, on the evidence, the test for making an Order for possession under Order 113 is met.
Ms Justice McBride said that Order 113 was introduced to deal with squatters entering onto lands in respect of which they had no rights, and the Order 113 test represented a low hurdle which had to be satisfied by defendants. She added that bald assertions alone without a shred of evidence would rarely, if ever, be sufficient to establish an arguable case.
Ms Justice McBride then considered the relevant legal principles on adverse possession. The doctrine arises from the provisions of the Limitation (Northern Ireland) Order 1989; evolved by the common law in Powell v McFarlane 38 P&CR 452 and J A Pye (Oxford) Limited v Graham 1 AC 419. The person making a claim of adverse possession has the burden of proof, which must be established on the balance of probabilities.
Evidence Submitted on Adverse Possession
Mrs Ward claimed title to the field on the basis of adverse possession. She claimed possession from 2004 when she moved into a Housing Executive property, which lies immediately adjacent to the Northern boundary of the field. Corroborated with photographs, some undated, Mrs Ward relied on several acts of possession to establish adverse possession:
- She had made a run for her dogs in the field
- When trees were removed from the field she filled the holes with hard core
- She kept ponies in the field from before 2004
- Along with her husband, she carried out repairs to fences along the boundary of the field
- She replaced a metal gate at the entrance to the lands and put a lock and chain on the gate
- She erected temporary internal fencing to align up hedges from 2004
- She cleared rubbish from the field since 2004
In addition to affidavit evidence from Mrs Ward, a former chairperson of a local Community Association averred that Mrs Ward kept ponies in the field and that he helped her with repairs in the field.
The Trust submitted that it was the registered evidence of the field, and that Mrs Ward and Mr Ward entered into occupation of part of the field in 2017 without consent. Notably, the Wards had removed a fence to the rear of Mrs Wards home in the Summer of 2017 – Google maps dated in 2010 and 2015 did not show any encroachment into the field, and CCTV footage showed that the new fence which enclosed part of the field was erected in August 2017.
It was also submitted by the trust; that the field was used by young people in the summer to race quad bikes; that an invoice showed it had paid for trees to be cut down in 2006; that it had paid for a galvanised gate to be erected at the field; that invoices show it had paid for a chain and padlock to secure the field; and that the field was let in 2005, 2008, 2009, 2015, and 2016.
On reviewing the evidence, Ms Justice McBride was not satisfied that the Wards had established an arguable case:
- It was not shown that Mrs Ward had been in possession for 12 years
- The acts carried out were not sufficient to establish an arguable case that she was in factual possession of the field or that she had the necessary animus possidendi. In respect of the grazing of animals and repairing boundary fences, Ms Justice McBride said she was satisfied that these were not acts of adverse possession as they are equivocal acts (Gallagher v NIHE NIJB 138 considered). Furthermore, there was no evidence presented by Mrs Ward to support her assertion that she erected the gate and put a padlock on it.
Satisfied that the Wards were not entitled to claim adverse possession, and that the matter should not proceed to trial, Ms Justice McBride made an order in the terms of the summons.
- by Seosamh Gráinséir for Irish Legal News