Q I would like some general advice about squatter's rights. About 30 years ago my uncle rented 25 acres to a neighbour. This man paid rent for a few years (I'm not sure how many), but then stopped.
My uncle threatened to get the law involved but he never did and he died a while back.
I was left the farm by my uncle but I never went to court to settle this dispute because I presumed that the neighbour would have a claim for squatter's title so I left the matter as it was.
The neighbour is now old and in failing health and I was wondering will his squatter's rights claim die with him?
This man has no children and he farms alone but I am sure he will have relatives who will inherit his farm.
Can I move the boundary fence back to reclaim the 25 acres into my block of land? Or how else can I resolve this?
A The issue of squatter's rights can often result in extremely contentious cases as it potentially removes a land owner's rights and transfers them to another person.
Land law in Ireland has a long and colourful history, and each year many cases appear before the courts in an effort to detangle the often complex issues that arise with ownership.
It is important to remember that just because a will states that the deceased intended another to become the owner of certain property after his/her lifetime, they must actually be the owner of the property or at least the owner of a share which is transferable for the will to be enforceable.
In order to claim adverse possession over property it is essential that the occupier - in this case your uncle's neighbour and former tenant - was not in fact paying any sort of rent, whether in monetary terms or through some other means of compensation to the land owner. Any period for which rent was paid would not be counted towards the time period required to gain squatter's rights/adverse possession.
The Supreme Court has 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's neighbour could use the lands.
It might also be significant if the farmer using the land had 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.
The possession must also be 'adverse'. That means it must actually be in possession of the person claiming ownership, which in this case would be your uncle's neighbour/his heirs and not the registered owner.
In many cases the question to be decided by the court in determining 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/registered owner over the property during the 12-year period will negate possession.
In one case, 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.
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.
If you have land which is being used by another person and is in their control, by having a lease/licence 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/licence 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 based in Ardrahan, Co Galway