I own a plot of land far away from where I live and recently, I called to the property and noticed that a man is using the land for the grazing of his animals. I do not think this has been going on for long, but I am still worried.
Can he make a claim for squatter’s rights?
What can I do now to protect my property?
What can I do in the future to protect my land to prevent this situation reoccurring?
The question arises as to whether this ‘squatter’ has acquired adverse possession, more commonly known as squatters’ rights.
Adverse possession allows a third party to claim a right over land which is registered in the name of another person, on the basis that he has occupied the land continuously for over 12 years with the intention of excluding all others, including the true owner.
Each case will be examined on its own facts and circumstances.
The onus will be on the claimant to show that he has established adverse possession.
1. The person making the claim needs to be in sole and exclusive occupation and possession of the land for 12 years, or more in the case of privately owned land.
2. The claimant must exclude others, including the registered owner, from the land for over 12 years.
The claimant must be physically occupying the land continuously that is inconsistent with the title of the registered owner.
The question of what acts constitute physical and continuous occupation depend 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 so definite and positive that they leave 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.
Examples of actual and exclusive use of land would be planting or harvesting crops, cutting and selling timber, constructing houses and erecting fences.
A mere claim that a squatter has acquired title by being in occupation for the requisite period (usually 12 years) is not in itself sufficient to establish a claim of adverse possession.
It is for the squatter to prove the facts on which he will base his claim, and it is a matter for the Land Registry or the court to decide whether, on the facts proved, title has been established.
This could be acquired by him making an application for registration to the Land Registry claiming adverse possession.
A registered owner will be on notice of such an application and can object to it, which will usually result in the Land Registry refusing to register the application, and the matter may then be referred to court.
What you should do now
1. Approach the man immediately, and tell him to desist from trespassing on your lands.
Follow up with a letter.
It is advisable to instruct a solicitor to draft the letter.
2. If he does not stop, institute legal proceedings against the trespasser, to stop the ‘adverse possession clock’ from running.
3. You should also exercise some act of ownership over the property in the interim, for example, erecting fences, placing animals on the land or erecting buildings.
4. Another option open to you would be to procure from the man a signed agreement, either agreeing to rent the land at a certain figure, even a nominal figure, and for a certain period, or merely acknowledging that he is present on the land with your permission. If such an agreement is signed, then the man cannot bring an adverse possession claim.
Advice to all landowners
1. It is important that a landowner is not careless or complacent, and makes clear to all that he or she owns that particular property.
2. It is wise that a farmer inspects his or her land regularly.
3. If the farmer is away for long periods, he or she should appoint someone to inspect his or her lands, and ensure no third party is occupying them. It is prudent to look for signs of entry, use, new fences having been erected, animals grazing or crops planted.
Karen Walsh, from a farming background at Grenagh, Co Cork, is a solicitor practicing in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.
While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.
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