It is up to the squatter to prove a claim
Adverse possession (Squatter’s Rights) is a common enough scenario, writes Karen Walsh.
My father squatted on two acres of land adjacent to his farm, many years ago, as if it were his own.
He transferred the farm to me, 20 years ago, and I continued to use this land since.
No one has ever bothered me while I have been using it. The difficulty is my father had no paper title to this land, and neither do I.
What can I do to get the land registered in my name and sort out the title once and for all?
This is a common enough scenario.
The first thing you need to do is consult a solicitor.
You need to give detailed instructions to your solicitor, and they will need to attend upon you to establish information such as when did your father go into occupation, when did you go into occupation, what uses did you make of the land over the years, did you ever pay rent for the land to anyone, etc.
Essentially, they would need to take a detailed history of the property over the years.
You would also need to establish who the registered owner of the property is and whether or not it is a Registry of Deeds title or Land Registry title. Essentially, you would need to make an application either through the Land Registry or the court, depending on the circumstances, for adverse possession.
Adverse possession, as it is known in legal terms, (otherwise known as “Squatter’s Rights”) allows a third party to claim a right over land which is registered in the name of another person, on the basis that they have occupied the land continuously for over 12 years with the intention of excluding all others, including the true owner.
If the claimant is successful in the claim, he or she is entitled to be the registered owner of the land in question. The previous owner is ousted, and the claimant gains title.
What are the requirements to make a successful claim for squatter’s rights?
The person making the claim needs to be in sole and exclusive occupation and possession of the land for 12 years or more.
It is six years in the case where the registered owner has died.
The period is extended to 30 years for land owned by a state authority.
A claim that you have been in occupation of the property for the required number of years is not sufficient.
All conditions need to be satisfied.
The person making the claim must exclude others, including the registered owner from the land for over 12 years.
The person making the claim must be physically occupying the land continuously, that is, inconsistent with the title of the registered owner.
If the registered owner still uses the land now and then, then you are not using it exclusively, and the claim will fail.
The question of what acts constitute physical and continuous occupation depends on the circumstances, the nature of the land, and the manner in which that land is commonly enjoyed or used.
The acts relied upon by the squatter must be definite and positive that it leaves no doubt in the mind of the landowner that occupation adverse to his title is taking place.
Small acts or acts that take place now and again will not be sufficient to oust the original owner, for example, the occasional grazing of cattle owned by the claimant on the land.
Whether a person is successful in a claim for squatter’s rights depends on the facts and circumstances of each individual case.
How do you make a claim for Adverse Possession?
An application is made to the Property Registration Authority.
A long and detailed affidavit must be prepared setting out the history of the adverse possession, and showing indisputable evidence that the “squatter” is now entitled to the property.
It is for the squatter to prove their claim, and it is a matter for the Property Registration Authority or the court 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.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.