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Wednesday 25 April 2018

The legal maze of squatter's rights laid bare

A 12-year term o f 'adverse possession' may not be enough to secure title of disputed property

Squatter's rights is a subject that's close to farmers' hearts. A person can acquire squatter's rights, or adverse possession as it's known in legal circles, by being in sole exclusive occupation of property for the required period, which is generally 12 years.

Whether a person is successful in a claim for squatter's rights depends on the facts and circumstances of each individual case.

• The squatter must dispossess the true owner of the property.

The true owner must have lost his right to the land either by being dispossessed or by having discontinued possession of the land.

The acts relied upon by the squatter must be of such a nature that it leaves no doubt in the mind of the true owner that occupation adverse to his title is taking place.

SPORADIC

Minor acts or sporadic use of land by the squatter, such as a neighbour letting in cattle while the true owner is away for extended periods of time, will not be sufficient to show that the squatter had taken possession to extinguish the true owner's title to the disputed property.

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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 found 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.

• The squatter must intend to exclude the world at large, including the true owner.

This is best illustrated by a court case where a squatter was claiming squatter's rights but the court found that the squatter did not have the necessary intention to dispossess the true owner.

The court relied on the fact that, when the squatter was questioned by gardai after an altercation with a fencing contractor a couple of years previously, the squatter told the guards that the land belonged to a man in America rather than telling them that the land belonged to him.

The court found that this answer indicated to them that the squatter did not have the necessary intention to preclude the true owner and all other persons from enjoyment of the property.

• The possession must be inconsistent with the title of the true owner.

Even if the true owner has no present use for the land, provided they have a specific purpose in mind for its use in the future and can show that the use by the squatter is not inconsistent with their ultimate intention in respect of the property, the squatter's claim will fail.

For example, if the land is owned by a property developer and is used by a squatter for grazing cattle until such time as the property is developed, the squatters occupation of the land will most likely not amount to an act of adverse possession.

Time period to establish a claim

The Statute of Limitations stipulates a period of 12 years for the bringing of an action by the owner for recovery of land from a squatter, or 30 years where the land is owned by the state.

Thus if a squatter enjoys adverse and exclusive possession of land for 12 years which is inconsistent with the title of the true owner, the title of that property owner is said to be extinguished.

This is reduced to six years where the property is the estate of a deceased person.

Factors taken into account in establishing a claim

A mere claim that a squatter has acquired title by being in occupation for the requisite period is not of itself sufficient to establish a claim of adverse possession.

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.

Matters which will be looked at include when the squatter entered into possession, the uses they made of the property and the acts of possession.

It should state the names and addresses of all persons whom the squatter claims to have dispossessed.

Defences to a claim of squatter's rights

1.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 from the date of the acknowledgment.

For example, if the true owner sought to oust the squatter after 10 years in occupation and the squatter wrote a letter in response refusing to leave while acknowledging that the true owner had legal title to the property, the squatter would need to stay in occupation for a further 12 years in order to pursue a claim for squatter's rights.

2.Another defence arises if an action is based on fraud, in which case the clock will not begin to run until the true owner has discovered the fraud, or at least could have discovered it with reasonable diligence.

3.If the true owner was under a disability, their title is not extinguished on the expiration of the normal 12-year period but continues until six years from the date of the cessation of the disability or death or 30 years, whichever is earlier.

There have been numerous cases involving squatter's rights which have resulted in a significant body of case law to determine whether a person will be successful in a claim for squatter's rights.

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

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