Adverse posssession and unadministered estates: an unfair solution to a redundant Irish problem

It is frequently asserted that the doctrine of adverse possession performs a valuable social function in Ireland by allowing the ownership of land forming part of an unadministered estate to be updated many years after the death of the owner. More specifically, it is argued that this role is particularly important in rural Ireland where, historically, will-making was uncommon, emigration was widespread and grants of representation were rarely extracted in relation to small farms. 1 The typical scenario involved the death of the registered owner of a farm2 with the result that his children became entitled to the land as co-owners under the rules governing intestacies. However, only one (or some) of his children remained in possession of the farm for 12 years or more, while the others left to work and live elsewhere. In the meantime, the deceased farmer’s estate remained unadministered. On the expiry of the limitation period, a Land Registry application could be made by the child in possession, frequently the eldest son, pursuant to s 49 of the Registration of Title Act 1964 to register him as the new proprietor on the basis of his adverse possession. 3 A s 49 application avoids the inconvenience and expense of extracting multiple grants if there was more than one death on the title or the need to obtain numerous consents to a deed of family arrangement for the purposes of releasing the intestate shares of the applicant’s siblings.