Legal advice: Can my tenant claim squatter's rights?

My father has let land for the past 14 years to a neighbour. There is no written lease in place and the farmer pays my father in cash once a year... can the tenant claim squatter's rights?

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.

Dear Karen, 

My father has let land for the past 14 years to a neighbour of ours. There is no written lease in place and the farmer pays my father in cash once a year.

I am concerned that this man could claim squatter’s rights over my father’s lands now, or later when he passes on. My father is in his 90s and really trusts this man. He thinks he will "rock the boat" if he asks him to sign a lease?

What would you advise?

Dear Reader, 

These types of leases are not unusual, although are becoming less commonplace. Your father has an oral lease with the tenant, and I note that the tenant makes payments every year to your father in cash. I will address your query in relation a squatter's rights claim first.

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, 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. 

A claim that a person has been in occupation of the property for the required number of years is not sufficient. All conditions need to be satisfied. These types of applications or claims are very difficult, and the burden is very high.

One cannot be a squatter and a tenant. The two are exclusive of one another. The fact that the tenant pays rent to your father is an acknowledgement of your father’s title and ownership of the land.

However, given the fact there is no written lease in place and payments are made to your father in cash, from what you have told me, means there is no written record of a lease being in existence.

It would be advisable to put a written lease in place which sets out both parties’ obligations and provides useful legal protection. In addition, leasing is appealing to landowners in particular as there are great tax incentives for landowners to enter into a lease arrangement. This is the main reason oral leases are less common nowadays.

A lease is a written legal agreement between the landowner and the tenant. Aside from providing a written record and details of the payments, you can also put additional clauses and conditions in place. 

For example, clauses could be inserted that the farmer would insure the land and indemnify your father in respect of all claims or liabilities arising from his use of the property, that he could not sublet the land without your father’s written consent, that he does not have an automatic right of renewal of the lease, that he would put back the land in grass at the end of term etc.

Clauses could also be inserted in respect of the termination of the lease by either party if either party wishes to end the lease. When a person is renting property, they can be afforded certain rights under landlord and tenant legislation, such rights include the right to a new tenancy. It is important that your father obtains legal advice.

It is also important that your father seeks tax advice from an accountant or tax consultant in respect of long-term leasing as it may have tax consequences if he wishes to transfer the farm to a child in his lifetime.

Karen Walsh, from a farming background, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork, and also the author of 'Farming and the Law'. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email:  [e-mail] 

Web: www.walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.