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Friday 23 February 2018

Advice: Local farmer is using my dead neighbour's land. Can he claim squatter's rights?

Many complex land ownership issues come before the courts
Many complex land ownership issues come before the courts

Theresa Murphy

Q. I have noticed that since the death of a local elderly farmer, a neighbour has been using his land as if it were his own and recently put up a fence around it. I know the neighbour has not inherited the land but I don't know who has as the elderly man had no children or family that I know of. Will the farmer using the land be able to claim squatter's rights?

A Each year many cases appear before the Courts in an effort to untangle complex land ownership issues, of these many issues, adverse possession also referred to as squatter's rights is just one.The topic of adverse possession is always a contentious one as it inevitably involves the dispossession of a land owner of at least some of his/her lands. It often arises between neighbours and can relate to small pieces of lands/boundaries as well as including an entire farm.

A squatter is a person who unlawfully inhabits an uninhabited house or unused lands.

Squatter's title or adverse possession can be claimed in relation to lands where the squatter does not live but instead has control of, in this case a farm.

Adverse possession

In order to claim adverse possession over property it is essential that the occupier is not paying any sort of rent, whether in monetary terms or through some other means of compensation to the land owner eg labour, accommodation etc.

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.

In other words there must have been an intention on the part of the occupier to use the lands.

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The possession must be adverse. That means it must actually be in possession of the person claiming ownership and that person must not be the registered owner.

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.

In the case of the owner being deceased the period is reduced to six years.

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 many cases the question to be decided by the Court in deciding whether or not to oust the registered owner is whether there was adequate 'possession' of the lands by the person claiming adverse possession.

The use that the land/property was put to will be looked at.

A 2014 case involving this type of claim indicates that insuring the property for all the length of the possession does amount to an act of possession.

Even slight acts of ownership by the true owner over the property during the 12-year period will negate possession.

In one case here, the landowner only visited it on a number of occasions each year when he would park his car and stand on the road or in the gateway looking over the hedge or gate.

The judge in that case decided that because the owner's legal title extended to the centre of the road they were in fact standing on their own land each time.

It is significant that the farmer using the land has erected a fence around it as this could indicate his intention to exclude others from use of the land including the rightful owner and therefore assist in a potential claim of adverse possession.

Protecting Against A Claim

If you have land which is being used by another person and is in their control, by having a lease/license in place and renewed from time to time for which you receive even a very small rent, you could ensure that the occupier is a tenant and tenants cannot claim adverse possession.

If someone is in occupation or use of a part of your land without your permission and without a lease/license in place you should serve an eviction notice. However, it is not sufficient to issue an eviction notice and take no further action, you should follow up on this.

If a squatter acknowledges the title of the true owner during the 12-year period, it stops the clock and the squatter will have to start a fresh period of occupation.

It is for the squatter to prove their claim and it is a matter for the court or the land registry to decide whether title has been established. Claims for adverse possession/squatter's rights are complex and require individual and considered legal advice.

Theresa Murphy is a barrister at law based in Galway. email: theresamurphy@lawlibrary.ie


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