Farm Ireland

Tuesday 25 October 2016

Land wars

Theresa Murphy

Published 28/09/2016 | 02:30

Land ownership issues can be complex
Land ownership issues can be complex

Q. Following the recent death of my uncle I learned that I was to inherit a piece of land which he purchased in the early 1960s from a neighbour who has also since died. A few weeks after his will was read I was contacted by my solicitor who informed me that he had been notified by a relative of the neighbour who had sold the land that they intended to lay claim to the land my uncle had left to me.

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They are claiming that the land was never sold and have mentioned that my uncle paid rent to the land owner. I have found the stubs of the cheques which my uncle used to pay for the land but I am concerned that I may not inherit the land after all.

A. Each year many cases appear before the Courts in an effort to untangle complex land ownership issues.

Assuming that all is in order with the will itself, in this case the question to be answered is whether your uncle acquired ownership of the lands as a result of the payments which you have identified.

If so, what actions need to be taken to have the registration of title dealt with by the registry so that the land can be subsequently transferred under the terms of the will.

The other possibility is whether your uncle could have acquired "squatter's rights" over the lands (otherwise known as adverse possession) after long and uninterrupted use of the land. In this case the title twill still have to be dealt with prior to any transfer occurring under the terms of the will.

Transfer of lands

It is unlikely that the sale of a piece of property occurred without any written agreement, no matter how basic.

A written enforceable contract for sale must be signed by the person against whom the agreement is to be enforceable (which in this case would be the seller).

The updated legislation from 2006 states that 'no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person's authorised agent.'

In order for a written agreement to be considered enforceable, it must contain essential terms for the formation of a valid contract for the sale of land.

The essential terms are:

the identity of the parties, clearly set out;

the property being dealt with, clearly set out;

the price, or a formula to determine the value, must be established;

evident intent to sell

You should check with your solicitor that the terms of the will relating to the lands being conveyed are certain and clear.

In the absence of a written agreement you would be relying on the doctrine of specific performance.

This in an equitable remedy which can be awarded by the Courts. However, this could require a lengthy and potentially expensive legal action. In this case you would be seeking a transfer of ownership due to the payment by your uncle for the lands.

Adverse possession/squatter's rights

In order to claim adverse possession over property it is essential that the occupier, in this case your uncle, was not in fact paying any sort of rent, whether in monetary terms or through some other means of compensation to the land owner.

The Supreme Court held that for possession to be adverse it must involve the intention by the occupier to exclude the owner from the enjoyment of the estate or interest.

This means that effectively there must have been an intention that only your uncle could use the lands.

The possession must be adverse. That means it must actually be in possession of the person claiming ownership which in this case would be your uncle/his heirs.

If the neighbour who originally purported to sell the land is actually in possession of the land you could not make a valid claim for adverse possession.

You must show that it was not simply the intention to allow your uncle to use the land for a number of years but ultimately use the land for some other means after your uncle had used it.

Although this would be unlikely if the original agreement was to sell the property, it should be considered.

Claiming adverse possession

Where a person enjoys adverse and exclusive possession of the land, for a period of 12 years or more, that person will be entitled to claim a right over the land.

The period is extended to 30 years for land owned by a state authority.

An application for adverse possession is made to the Property Registration Authority. A long and detailed document must be prepared setting out the history of the adverse possession and showing indisputable evidence that the "squatter" is now entitled to the property.

In this case and all cases where the land owner is deceased the time limit for making claims of adverse possession changes.

Claims for adverse possession/squatter's rights are complex and require individual and considered legal advice.

Theresa Murphy is a barrister based in Ardrahan, Co Galway

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