What is a Squatter – What is 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 required to pass 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 for some time.
In Roman times, someone who was in possession without title could become a lawful owner if the original owner did not appear after a set number of years. At the time of setting up the Napoleonic Code this was adopted as the basis of law in France, Belgium, Italy, Luxembourg, Portugal, Spain, and also, in part, by the Netherlands and Germany. In England the first Act of Parliament limiting the right to recover possession of land was as far back as 1623.
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 ie a certain number of years (60, 50 or 30 depending on the kind of claim made) before the date of the claim.
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.
This is subject to the usual rider that each case depends on it own facts.
1. In the absence of evidence to the contrary, the owner of property on paper is deemed to be in possession of the property.
2. The squatter must prove both factual possession and an intention to be in possession.
Factual possession is proven by an appropriate degree of physical control.
The paper owner and a squatter cannot both be in possession at the same time and the squatter has a higher onus to prove his/her case.
The question of what is exclusive possesion by a squatter is a matter of proof. It is fact dependant – each case will be decided on the fact presented to the Court. The Court will look at the type land involved and how that land is commonly used and enjoyed.
3. The squatter must be in continuous possession for a period of 12 years.
4. Minimal acts of possession by a paper owner will be enough to establish that time does not run ? what does this mean for example, carrying out repairs or insuring the property.
5. However, if 12 years adverse possession is proven, the paper owner cannot reactivate a claim to ownership.
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.
The material in this Blog 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.