Protection for Owners under the Law on Adverse Possession: An Inconsistent Use Test or a Qualified Veto System?

Abstract

This article will assess the case for reforming the Irish law on adverse possession to confer additional protection on the owner. Assuming such reform is warranted, it is possible that an existing judicial solution, known as the rule in Leigh v Jack, has already been devised. Ontario’s experience with an equivalent rule, known as the inconsistent use test, is of interest in this context and certain academic literature is discussed which explains why the inconsistent use test was developed and argues in favour of its retention or resurrection. An alternative model of protection is then analyzed: the English Qualified Veto System of adverse possession introduced by the Land Registration Act 2002. I argue that a judicial or legislative reincarnation of the rule in Leigh v Jack would be an extremely flawed method of reforming the law in jurisdictions, such as Ireland, which are considering reform, as the Qualified Veto System more effectively responds to the difficulties which the inconsistent use test appears to be attempting to resolve. I conclude that such a Qualified Veto System, similar, although not identical to the one introduced in England, should be introduced in Ireland. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/2