The Gazette 1987

GAZETTE

JANUARY/FEBRUARY 1987

Adverse Possession and Encroachments by Tenants

title is presumed to endure only for the remainder of his own lease and not for the duration of the leasehold or freehold estate the title to which has been extinguished (aliter where the duration of the latter is shorter than that of the former). The presumption applies even to encroachments over property not immediately adjacent to the squat- ter's own demised premises — the intervention of a stream, 5 or a road 6 has been held to be of no conse- quence, but encroachments clearly at a distance do not attract the presumption; in the words of one judge speaking of this matter as go- ing more towards rebutting the presumption:- "The intervention of a stream ,sicl like the Rhine or the Rhone would probably rebut the prima facie presumption, when a small insignificant stream would not." 7 bearing gifts" because it's home lending scheme has always been criticised for linking the borrower's security for his home loan with all other sums which might be due to the Bank. In their "two-mortgage" scheme not only does the home loan transaction capture the home itself, but also any sums which the borrower might owe to the Bank by way of ordinary overdraft or term loan facilities for a business and, in addition, liabilities that might be due by the customer on foot of any sureties or guarantees. It seems unfair that a person seeking only to finance the purchase of a home, at the market rate of interest, should have to put that home at risk to secure other liabilities. Other Banks have taken a different line and have segregated home loans from the other borrowings. A.I.B., having resolved the "third solicitor" pro- blem, would gain further plaudits if they were to follow their com- petitors in this regard. •

The l aw governing the consequences of encroachments by tenants on land adjoining their own demised premises (whether belonging to the landlord or not) has received relatively little critical analysis in Irish legal literature. 1 This topic involves consideration of the squatter tenant 's position vis á vis his landlord after his encroachment has extinguished the title to the adjacent property and is closely related to, but to be distinguished f r om, the controversial issue concerning the right of the occupier of the adjoining property where he himself is a tenant, to deal wi th his interest despite its supposed extinguishment and defeat the squatters interest by, for instance, e f f ec t i ng a surrender to his own landlord.

That is an issue on which our Supreme Court in Perry v Wood- farm Homes Ltd. 2 and the House of Lords in Fairweather v St. Mary/ebone Properties Ltd. 2 have reached divergent conclusions and whilst the Supreme Court has denied the existence of any such right, the position of a squatter on leasehold property in this jurisdic- tion has been noted to be nonetheless unsatisfactory by reason of the landlord's ability to effect a forfeiture of the lease in question — a forfeiture which the squatters will in most cases be powerless to prevent. 4 It must be stressed at the outset that the doctrine of encroachment does not stand in quite the same lamentable state but critical scrutiny of some of its aspects reveals a doctrine that suffers both from a lack of judicial consensus as to whether it has anything to do with the law of adverse possession where the encroachment is on land belonging to the tenant's landlord. Statement of the Doctrine The doctrine may be stated thus; by Stephen Pye, B.C.L., Barrister-at-Law

any encroachment by a tenant on premises adjacent to his demised premises is presumed to be for the benefit of his landlord; consequently where the tenant, having been in adverse possession of the adjoining property for 12 years, has extin- guished that adjoining owner's title, the squatter tenant's possessory V I EWP O I N TS (from p.3) prepared to lower interest rates, other financial institutions would gain a competitive advantage. The alternative of increasing the in- terest rate to borrowers by a modest amount may well seem at- tractive to the Societies. If it does, then the only benefit to be gained by the borrower will be that, in- stead of being asked to pay solicitors' fees at the inception of the mortgage, he will pay them over the period of the mortgage. Borrowers would be glad not to have to pay at the beginning, but this arrangement hardly tackles the main problem, which is the necessity of the second investiga- tion of title and is the need for the " t h i rd" solicitor. The A.I.B. scheme seems im- mediately more attractive, since it should result in an absolute saving to the borrower both in the short and long term. Unfortunately A.I.B. are cast in the role of the "Greeks

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