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Thursday 23 November 2017

Land registration -- working your way through the maze

Everyone has come across situations where a parent, aunt or uncle is farming land handed down to them from some relation, but without the legal formalities attended to.

Take an example where Patrick was registered as the owner of a plot of land in 1915. Patrick never married, had no children and died without making a will.

His nephew Michael took over the farm and has been farming the land since 1965. Michael is married and has four children, the eldest of whom, John, is now farming the land.

John wishes to borrow money to buy more land and the bank has looked for security over the land he is farming.

As the land is still registered in his granduncle's name, John cannot offer the land as security. He wants to know how to rectify the matter.

Where do you start?

The first step is to identify whether the land is registered in the Land Registry to establish whether it has a folio number or whether it is unregistered land.

If the land is registered, the person claiming title to the land must make a Section 49 application, or a squatter's rights claim.

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So how far back should the history of the property be traced?

In this example, John needs to trace the history of the land since the last registered owner (Patrick).

As Patrick is dead, all the information on his successors of title must be furnished. Having died a bachelor, childless and without a will, his nephew Michael actually had no legal right to take it over.

Instead, Patrick's brothers and sisters were entitled to equal shares in the farm. Therefore, Michael must claim squatter's rights against the aunts and uncles.

Only after this is complete, can Michael transfer his interest to John who can then offer it as security to the bank.

The squatter's rights application will have to provide details on the aunts' and uncles' marital status, whether they had children or occupied the land.

In addition, it will need to outline the precise time and circumstances of their permanent departure and destination.

This should include information on marriages or emigration.

If any of the aunts or uncles are deceased, Michael will need to provide dates and proof of death, whether they died with or without a will, and whether a grant of probate/administration was taken out to their estate.

How long must the applicant be in possession of the land?

Normally the applicant acquires title after being in possession for 12 years.

But the legal owners must not have taken the required action to reclaim their rights during that period.

The minimum time required can fall to six years where the property is the estate of a deceased person.

How long does it take to process a Section 49 application?

Notices must be served on affected parties such as the immediate next of kin of the registered owner who died without making a will.

The notice parties may object which will cause delays and a successful objection will prevent registration.

For this reason it is not possible to estimate how long the process will take.

Checklist for an application:

nDid the registered owner die testate or intestate?

nWas a grant extracted to his or her estate?

nEvidence of their death.

nNames and addresses of those persons entitled to the estate. Lodge original death certificates of all deaths on title.

nName and addresses of the personal representative of the registered owner and the next of kin.

nNames and addresses of all persons or their successors who would have any interest in the property.

nDetails and circumstances of the start of the occupation and proof that the occupation was not by permission of the legal owner.

nState how every part of the property has been used during the occupancy, including acts of ownership.

nIs the property securely bounded or fenced off from all adjoining property?

nWhat are the age, nature and condition of such boundaries?

nState the names and addresses of the owners and/or occupiers of all the lands adjoining the property.

nAny other relevant information.

Unregistered Land

If the land is not already registered an application should be made that includes:

1.Proof of possession for the statutory period.

2.Identification of the title against which possession is being claimed.

If an applicant can only prove the first of these two requirements, it is open to the Land Registry to offer possessory title which can be converted to absolute title when the possessory title has been registered for 15 years.

The drawback with possessory title is that the applicant cannot mortgage or sell the property until absolute title is registered.

A good starting point for proving point two is to get a certificate from the General Valuation Office records which should show the occupiers and immediate lessors of the property from 1950.

Also, the additional information required is similar to that when applying for registered land.

Disclaimer: Aisling Meehan, solicitor tax consultant and Nuffield scholar does not accept responsibility for errors. E-mail aisling@agriculturalsolicitors.ie

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