Monday 20 May 2019

Squatters' rights to be reviewed

There have been legal moves in the UK recently to address the ssue of squatters. CIAN MACGINLEY discusses the implications for Ireland

Adverse possession means possession of land inconsistent with the title of the true owner. The traditional view of a squatter is that of a land thief who sees an opportunity to occupy unused lands, however, in reality the most common form of adverse possession arises where encroachers often inadvertently, assume ownership of parts of neighbouring land because there are no physical boundaries or the maps on title are inadequate.

Squatters' rights can also help to clear up issues with legal title where the original owner may be unknown.

On the other hand Fingal County Council recently found itself having to pay €1m in compensation to compulsorily re-acquire 12acres of council- owned land in Dunsink, Co Dublin, where a car-parts dealer had been squatting for 20 years.

Perceptions

Despite perceptions, mere possession of the property is not sufficient. Possession must be "adverse" and therefore demonstrate an intention to exclude the true owner and all others from use and enjoyment of the property. This is ultimately a question of fact.

Legislation currently provides that a property owner cannot bring an action to recover land from a squatter at the expiration of a fixed period of time (usually 12 years) as title of that property owner is said to be extinguished.

While this doctrine is extremely beneficial in solving property title issues, it may on occasion operate unfairly.

Further questions need to be asked: can a landowner be deprived of title to his property due to a mere oversight or inadvertence? Would it be disproportionate to deprive an owner of his property right without compensation, for failing to assert his legal rights of ownership?

Current legislation

The current practise of adverse possession hangs in limbo in Ireland. The EU Convention on Human Rights provides that "no-one should be deprived of his possessions except in the public interest."

A recent English case adopting this position threw the notion of adverse possession in Ireland into turmoil.

However, on August 30, 2007 the European Court of Human Rights ruled in this case that the English law on adverse possession does not violate human rights. The Irish Land Registry, now called The Property Registration Authority, had reacted prior to this decision by temporarily suspending adverse possession applications.

This sparked proposals by the Irish Law Reform Commission curtailing the ambit of adverse possession, including:-

1. a higher burden of proof being imposed on the squatter;

2. a requirement to make an adverse possession application through the courts rather than the Property Registration Authority;

3. the payment of compensation to the dispossessed owner; and

4. a notification system giving the dispossessed owner an opportunity to retrieve the situation.

Applications

Currently, applications to register property acquired by adverse possession are made to the Property Registration Authority as the temporary suspension has been lifted. There are different approaches applied to these claims based on the type of property being dispossessed and different proofs required depending on the identity of the dispossessed owner.

There is no definitive answer as to whether applications for registration of a squatter's title will be accepted or not. As each case is looked at on its own merits and facts, legal advice should be sought to increase the probability of success.What is the reward of a diligent trespasser? Will the negligent owner be penalised? New legislation in this area is awaited to answer these and other questions about adverse possession.

Cian MacGinley is a solicitor with O'Donnell Sweeney

Eversheds.

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