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Life whose leasehold interest was statute barred in
favour of the plaintiff, but whose title to the
freehold was not completed until its registration
on 17 December.
By virtue of having been a squatter with twelve years
adverse possession as against the Irish Life Assurance
Co., the plaintiff acquired a statutory title to the land
of which he had been in possession. An interim injunc-
tion had been granted against the defendants, because
on 14 December 1970, the defendants were not regis-
tered as full owners of the land in Folio 18621, Co.
Dublin. The point at issue is whether the plaintiff can
permanently restrain the defendants from entering the
aforementioned land, or whether the Irish Life Co. as
tenants under a long lease, whose own title has been
extinguished by twelve years adverse possession by the
plaintiff, can validly assign to the tenants. Furthermore
the question is whether the defendants, as assignees of
the tenant's interest can, by acquiring the fee simple in
the land, enable the lease to be determined by merger,
and the plaintiff to be dispossessed as a squatter.
The matter is regulated historically by Section 34 of
the Real Property Limitation Act, 1833, which provided
that after 20 years from the time a person could bring
an action, if he did not exercise it, the right and title
to such land would be extinguished. This period of
20 years was reduced to 12 years by Section 1 of the
Real Property Limitation Act, 1874. This has now been
repeated in Section 13 (2) (a) of the Statute of Limita-
tions 1957.
The defendants contend that the freehold interest, to
which they became entitled on registration, was an
estate or interest in remainder, or alternatively a future
interest. Section 15 (1) of the 1957 Act states that,
where a claim is made under a reversion, a remainder
or future interest, and no person has taken possession
of the land by virtue of the interest claimed, such
estate or interest shall be deemed to have accrued on
the date on which they fell into possession, by reason
of the determination of the preceding estate. Therefore
the defendants contend that their right of action only
accrued upon the determination of the preceding estate,
which in this case was a lease. As the defendants
acquired by assignment a leasehold interest on 5 Octo-
ber, 1970, when the defendant was registered as full
owner of the land, they contend that a merger took
place, and consequently that the immediate reversion
was vested in them.
The plaintiff's contentions are as follows :
(1) The object of all Statutes of Limitation is to pre-
vent claims which, though originally valid, must be
considered as extinguished where ancient possession
is to be clothed with the right.
(2) The effect of Section 13 (2) and 24 of the Statute
of Limitations is to destroy the title of the lease-
holder. Section 24 provides that subject to the
squatter provisions of the Registration of Title Act
1964, at the expiration of the 12 year period with-
in which an action for recovery of land may be
brought, the title of that person to the land shall be
extinguished.
Before 1892, it was widely accepted that the effect
of Section 34 of the 1833 Act was to convey the
estate of the ousted person to the squatter. In
Tich-
borne v Weir
(1892), 67 L.T. 735, the English Court
of Appeal held that the person who had been in
possession adverse to the tenant for a number of years
was not liable on the covenants in the lease after the
expiration of the term, and after he had gone out of
possession; the Court also refused to accept the notion
of a parliamentary conveyance as good law. Tich-
borne's case has since been accepted as a leading
precedent in English Law. In Ireland, Holmes, L. J.'s
statement in
O'Connor
v.
Foley
(1906) 1 I.R. 20 that
the title gained by a wrongdoer by adverse possession
is limited by rights yet remaining unextingished, is also
commensurate with the interest which the rightful
owners lost by the operation of the statute, and has the
same legal character", is generally accepted.
The majority decision, given by Lords Radcliffe,
Denning and Guest, in
Fairweather
v.
St.
Marylebone
Property Co. Ltd.
(1963) A.G. 510 where the ousted
tenant purported to surrender to the freeholder, was :
(1) That an owner in fee simple, subject to a term of
years, had an estate or interest in reversion or
remainder.
(2) Accordingly his right of action against a squatter
was deemed to have accrued at the date when the
preceding estate determined, so that his estate or
interest fell into possession.
(3) That the effect of the extinguishment sections of
the Statute of Limitations was that, when a
squatter dispossessed a tenant for the statutory
period, it was the
tenant's title as against the
squatter that was finally destroyed, and not the
tenant's right or title against the
freeholder.
(4) Accordingly the tenant was in a position to sur-
render to the landlord.
(5) That, as a result of the ousted tenant surrendering
the lease, the lease was determined.
(6) Thereupon the freeholder became entitled to pos-
session of the property.
The effect of this decision is that the successors in
title of a squatter on leasehold land can, by collusion
between the tenant and the freeholder, be ejected,
however long the landlord has been out of possession,
be it 12 years, 120 years or 900 years. It seems that
such a result would entirely defeat the object of the
Statute of Limitations. In this case, the squatter (the
plaintiff) has gained the right to possession of the
premises in dispute as against the fee simple owner (the
defendants), subject to the risk and possibility of for-
feiture, as a result of a breach of covenant. Once the
squatter has been in possession for 12 years, the title of
the tenant is extinguished, and the tenant, who has
lost the right to possession, can no longer eject him.
The next question is whether the tenant and the
freeholder can by a merger or surrender give to the
freeholder the right to possession so as to defeat the
squatter. This was the view of Lord Denning in
Fair-
weather's case
when he said that he saw no difference
between a surrender or a merger or forfeiture, and that,
on each of these events, the lease is determined, and
the freeholder is entitled to evict the squatter, even
though the squatter has been on the land for more than
12 years. But, in the same case, Lord Morris, dissenting,
said : "If a tenant wishes during the term to place
the landlord in the position of having a right to posses-
sion as against everyone, he does not do this by aban-
doning such right to possession, because he must be in
a position to cede to the landlord right to possession
as against everyone else". It is undisputed that if a
tenant made a sub-lease, and subsequently surrendered
his own lease to the freeholder, the freeholder could not
eject the sub-tenant during the term of the sub-lease.
267