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Adverse Possession in Londonderry

By D

Gallagher v Northern Ireland Housing Executive [2009] NICA 50

With the advent of the Land Registration Act 2002 and its new regime for dealing with adverse possession claims these cases are fast disappearing from the Court’s of England & Wales. Luckily, for those who enjoy the common law position in these matters the old ways still apply elsewhere in the United Kingdom and the Court of Appeal in Northern Ireland has just been considering the issues.

In this case the NIHE owned a roughly L-shaped piece of land which G had occupied until about 1966 for the purpose of grazing a variety of animals. G owned a piece of land which (known as “Doherty’s field”) which fitted into the L to make a rectangle. There was little fencing between the two pieces of land and G asserted that since 1966 he had continued to use the disputed land. NIHE had become aware of this in 2004 and had in 2007 instructed solicitors to remove G from the land as they now wished to build houses in the area and needed the land to provide appropriate amenities for those new houses.

The appellant relied on a number of matters which he claimed established that he was in possession of the lands adversely to the paper owner. He relied primarily on the use of the land for grazing for the horses and contended that he kept a relatively large number of horses over the years which freely grazed the lands. These horses, he claimed, were kept by way of horse dealing and horse training. On occasion a veterinary surgeon, Mr Doherty, would attend the lands to deal with veterinary problems affecting the horses. Over the years the appellant repaired rough fencing around the disputed land which kept his horses in. He also claimed that on occasions he fertilised the land, put lime on it and on one occasion applied a weed killer. On one occasion he grew potatoes on part of the land but this was an unsuccessful venture as local residents removed the potatoes. He also relied on the fact that he permitted the Army to replace part of the fence and remove part of a hedge which was providing cover to snipers. He also relied on the fact that he had in place an area of hard core standing to enable him to feed the horses. He claimed that that area was located partly on Doherty’s field and partly on the disputed land and that this helped to demonstrate his animus possidendi of the disputed land.

At first instance the Court had doubts as to the credibility of G and would not accept his evidence without corroboration. On this basis it was held that he was a long way from showing the necessary level of adverse possession. The first instance Court drew significant adverse inferences from the poor condition of the land, the fact that local people would regularly wander onto the land and use it for hunting, and the placement of an area of hard standing.

The principal component of G’s case was that because he had previously occupied the land by permission his possession thereafter and therefore a distinction should be drawn (per Williams v. Jones [2002] EWCA Civ 1097) between a trespasser claiming adverse possession, who will need to show animus possidendi, and a former tenant claiming adverse possession, who will not. On this basis the first instance judge had applied an incorrect, and overly restrictive, test.

The Court of Appeal did not accept this, pointing out that the first instance Judge had found that G had not held a tenancy, but a grazing licence. Tenancies for agricultural purposes are very uncommon in Northern Ireland whereas licences for grazing are very common and the first instance Judge was therefore right to make this determination. Given that the grazing was the main issue relied on by G this fatally weakened his case. Grazing is often offered on a non-exclusive basis and without far more is insufficient to show adverse possession. The only issue which would then assist G was the placement of the hard standing. The first instance Judge had concluded that this was not on the disputed land and the Court of Appeal would not change that view.

Accordingly, the appeal was dismissed and new houses will presumably be built in the Londonderry area.

D is a solicitor specialising in landlord and tenant matters with a London firm.


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