The Gazette 1987

GAZETTE

JANUARY/FEBRUARY 1987

Adverse Possession and

Encroachments by Tenants

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.

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

Wood-

farm Homes Ltd.

and the House

of Lords in

Fairweather

St.

Mary/ebone Properties Ltd.

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.

Stephen Pye, B.C.L.,

Barrister-at-Law

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;

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

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,

or a road

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."

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. •