Ask a solicitor: My neighbour wants to claim my land

If a Section 49 application succeeds, it renders the interest of the legal owner statute-barred, and Tailte Éireann proceeds with registering the applicant as the new owner.

If a Section 49 application succeeds, it renders the interest of the legal owner statute-barred, and Tailte Éireann proceeds with registering the applicant as the new owner.

Dear Karen,

I live in Dublin, and I own land in Kerry that I inherited from my father. I do not often get home to Kerry, but normally, I would go home during the summer months. 

I have just received a letter from Tailte Éireann to say someone has lodged a Section 49 application to claim my land, notifying me of the application and confirming that if I wish to lodge an objection, that I need to do so within a specific timeframe. 

The applicant is a neighbour of mine down the road in Kerry, and when I meet him in the shops or at Mass, we salute each other, but I do not know him very well. 

Obviously, I am shocked at this. I did not even know that he was on the land, and now he is trying to claim ownership of my 25 acres that I own in Kerry. I was granted planning permission two years ago to build a house on the land. What can I do? I am really worried.

Dear Reader,

I am sure that receiving such a letter from Tailte Éireann must have come at a complete shock. Do not panic. You have time to deal with this. I would immediately instruct a solicitor to assist you with this. 

You have been written to by Tailte Éireann to notify you of this man’s application in the Land Registry to claim ownership of your land under what is known as adverse possession, or more commonly known as “squatter’s rights”.

To be eligible to claim adverse possession of squatter’s rights, a person needs to prove the following:

• That they and their predecessors in title have occupied the land in question continuously for 12 years or more.
• That they and previous squatters acted as owners of the property throughout that time. They will need to show that they had an intention to possess the land and they had exclusive possession of the land.
• They must not have had any permission to be on the land at any time.

If they succeed in such an application, it renders the interest of the legal owner statute barred, and Tailte Éireann proceeds with registering the applicant as the new owner.

You are being given a time period by Tailte Éireann to lodge a valid legal objection. This is very important. You cannot just lodge a simple objection saying that you own the land and that he is not to be registered as owner. 

You have to lodge a valid legal objection and you must do so within the time limit provided. You should obtain the advice of a solicitor to prepare an affidavit on your behalf to lodge in Tailte Eireann to object to the applicant’s application in the Land Registry.

It is very important to obtain legal advice as you do not wish to prejudice yourself by lodging an objection without taking the appropriate legal advice.

Where there is a clear conflict between the applicant’s affidavit and your affidavit, Tailte Eireann is not the appropriate forum to resolve such conflict. 

In such situations, the applicant is informed by Tailte Éireann that it is not satisfied that he is entitled to the registration sought and that the application is to be refused. The applicant will have a right to appeal the decision.

It is important that your solicitor obtain a copy of the grounding affidavit under which the applicant has grounded his application. Tailte Eireann, at their discretion, can release a copy of the affidavit to you.

An objection by an owner claiming that the occupation did not interfere with his future intended use for the property may be valid grounds.

Where there is a clear conflict between the application and your objection in order to refuse registration is normally what happens, and when a decision is made, they will give reasons to the unsuccessful party.

Angela O'Connor LLB specialises in Family Law, Enduring Power of Attorney and Applications in respect of Mental Capacity and Assisted Decision Making and is a solicitor practising in Walsh & Partners Solicitors LLP, 88 Main Street, Midleton, Co Cork.

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Web: www.walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, solicitor Angela O’Connor 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.