What are squatter’s rights exactly?
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.
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.
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.
The person making the claim needs to in sole and exclusive occupation and possession of the land for 12 years or more. It is six years in the case whereby 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.
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.
Each application for title based on adverse possession will be considered on its own merits. No two cases are the same. 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.
It places a positive obligation on landowners to ensure that their lands are not occupied by third parties. A landowner should inspect his or her property regularly to ensure that no unauthorised person is squatting on his or her lands.
If someone is in possession of your property without permission, without right under a tenancy agreement or otherwise, without force and without secrecy, then you must do something within the 12 year period to show that you have not abandoned the property.
The first and more practical option would be to get the person in possession to sign an agreement, either agreeing to rent the land at a certain figure (which could be nominal) and for a certain period or alternatively merely acknowledging that he or she is there with the owner’s permission. If such an agreement is signed, then the person in possession cannot make a claim for squatter’s title.
If the person in possession refuses to sign any such agreement and is in possession for less than 12 years, then the land owner should either instigate court proceedings without further delay or exercise some act of ownership over the property.
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