Adverse possession of boundary land - Lessons from abroad

Boundary disputes are an unfortunate fact of life. This paper illustrates the difficulties currently faced in Ireland by those seeking to demonstrate adverse possession of boundary land and discusses alternative remedies which may be relied upon to resolve boundary disputes. Recently, concerns have been expressed in Ireland and elsewhere in relation to the fairness of the doctrine, in particular the way it enables the deliberate squatter who is fully aware that he is not the owner of the land to acquire title to it. In England and Wales, the Land Registration Act 2002 introduced substantive reforms to the law on adverse possession of registered land which restrict its operation in the context of boundary land to adverse possessors who can satisfy a good faith requirement. In 2005 the Irish Law Reform Commission proposed certain reforms to the law on adverse possession, including the imposition of a good faith requirement in relation to boundary land in language which mirrors that used by the English 2002 Act. This paper discusses the interpretative difficulties which the English good faith requirement may give rise to and reveals a vacuum which this new approach creates in the resolution of boundary disputes that may leave certain 'deserving' possessors of boundary land without a remedy. The Irish Law Reform Commission plans to revisit the matter of reform in this area of law in the near future. If a good faith requirement is imposed in relation to adverse possession of boundary land, certain lessons could be learned from the English experience and also the Australian approach to boundary disputes, which relies heavily on mistaken improver and building encroachment legislation.