OPINION: Tipperary solicitor explains controversial 'squatters title' and matters of proof

Solicitor John Lynch on adverse possession...

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Tipperary

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Squatters - Adverse Possession
We often get asked what is meant by ‘adverse possession’ or what is often called ‘squatters title’.
It can happen where a landowner dies but no one does the legal work needed to pass on ownership to the person entitled. It can also happen where someone deliberately takes possession of land owned by someone else.
Adverse possession is based, not surprisingly, on the act of taking exclusive possession of land owned by another person for a fixed period of time.
It has been a feature of our legal system as far back as Roman times.
It has been the law in Ireland for centuries that a person claiming possession had to show possession of the land for a continuous period of years (60, 50 or 30 depending on the kind of claim made) .
It is not, however, as simple as taking possession.
Legal Principles of Adverse Possession in Ireland.
We can glean a number of principles from our case law, subject to the usual rider, that each case depends on its own facts.
The starting point is that the owner of property on paper is deemed to be in possession of the property.
To negate this starting assumption, the squatter must prove exclusive possession for 12 years.
The question of what is exclusive possession by a squatter is a matter of proof. Each case will be decided on the facts presented to the Court. The Court will look at the type of land involved and how that land is commonly used and enjoyed.
It is worth pointing out that the paper owner only has to do the minimum to show that they continued to be in possession - for example, carrying out repairs or insuring the property.
However, the end result is that if the squatter can prove 12 years exclusive possession the paper owner has no rights to the property.
Some Questions
There are a number of questions that can be asked.
Is there a continuous period of 12 years during which the squatter was in exclusive possession of property, showing their intention to possess the property?
Was the period of possession broken by any act of possession by the paper owner?
Was the squatter farming the land openly and transparently, and in a way that is clearly inconsistent with the interest of the paper owner?
As one judge recently put it “The adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that the occupation first of his title was taking place’. In other words, the actions of the adverse user or squatter must clearly show the legal landowner that their ownership of their land is under threat?
The advice to all properties owners is to continue to exercise control over property owned so as to avoid adverse possession claims.
The advice to persons looking after Wills is to complete any ownership transfer to avoid someone claiming ownership by long possession.
The advice to the squatter is that if they act openly without the permission of the owner and have exclusive possession for 12 years they may acquire ownership if the owner does nothing to prove possession during that 12 year period.
But, and there is always a but, each case has to be proven on its particular facts.
For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344.

The material in this article is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice on any legal decision or course of action.