Wednesday, September 28, 2016
For the last year and a half, squatters’ rights have been in doubt. A UK case, JA Pye (Oxford) Ltd v. The United Kingdom, had challenged the notion. Following lengthy litigation in the UK courts, the case was ultimately referred to the Grand Chamber of the European Court of Human Rights (ECHR). Ireland was asked to make a submission given the importance to our law. The doctrine of adverse possession, or squatters title, has now been reaffirmed and beyond doubt in Irish Law. The Court has accepted that the notion of squatters’ rights or adverse possession is an important part of the law in Ireland. The doctrine has far-reaching implications for both registered owners of land and those in actual occupation without the consent of the registered owner. [b]Adverse Possession explained[/b] Adverse possession arises where a person in physical occupation of land (‘the squatter’) occupies the land in a manner inconsistent with the title of the legal owner. The squatter must have occupied the land for 12 years or more before they can apply to become the owner of the property, thereby extinguishing the rights of the prior owner of the property to the land. The doctrine exists in recognition of the fact that property ownership carries with it both rights and duties, and that legal owners of property must not be careless with such ownership. It affirms the adage that ‘possession is nine-tenths of the law’ and, in addition, the 12 year period (known as a limitation period) avoids confusion as to the exact ownership of property; this is its principal justification. The Pye case highlights both the advantages for squatters and the disadvantages for legal owners inherent in the doctrine of adverse possession.
The facts of Pye
The applicant company JA Pye (Oxford) Ltd was the registered owner of 23 hectares of agricultural land in Berkshire in England valued at 21 million pounds sterling (approximately €31 million). Owners of adjoining property, the Grahams, occupied the land under a grazing agreement until 31st December 1983. On expiration of this agreement the Grahams were asked to vacate the land, but continued in occupation. From 1984 until 1999, the Grahams continued to occupy the land for farming purposes without the applicants’ permission. The Grahams claimed that they had obtained title to the land by way of adverse possession. The relevant legislation in the England and Wales which the applicant company challenged is the Land Registration Act 2002. This Act enables a squatter to apply to be registered as owner after ten years’ adverse possession, upon which the registered owner must be notified and given the period of two years to regain possession of the land, failing which the squatter is entitled to be registered as owner. It should be noted that there is no similar provision in Irish Law, although the law in relation to adverse possession is otherwise very similar in both jurisdictions.
The decision of the ECHR
• While the Grand Chamber found that Pye had been deprived of it’s substantive property rights so as to preclude it from lawfully repossessing the land the title to which it had lost, they also observed that but for the provisions of the relevant legislation, the Grahams’ adverse possession of the land would have had no effect on Pye’s title or on it’s ability to repossess the land at any stage.
• The Court could not accept that the law of adverse possession served no continuing public interest so far as registered land was concerned. Because the legal title of land which is registered is easily identifiable, the objection had been that the doctrine of adverse possession, in trying to avoid the uncertainties which sometimes arose in relation to the ownership of land, and which obviously did not apply to registered land, led to an unjust result. However, this argument was not accepted by the Court.
• The court found that, even having regard to the lack of care on the part of Pye in failing to recover possession of the land, the deprivation of their title to the registered land and the transfer of ownership to those in unauthorised possession (the Grahams) struck a fair balance with the legitimate public interest served of reducing uncertainty over interests in land.
What does a squatter have to prove to acquire title?
• 12 years uninterrupted occupation of property. This period starts to run from when the occupation becomes inconsistent with the title of the registered owner – ie, on notification from the registered owner to the squatter that the squatter should not be in occupation, where subsequently occupation is nonetheless not successfully effected.
• Continuous physical occupation by a squatter is not necessary to establish a claim of adverse possession; however, what is required is some continuous act or use of the property that shows an intention to occupy and possess, such as: grazing of animals, cultivation of crops, erection of fences or any other structures, planting of trees etc.
• It is of some relevance to point out that “squatter” can be an emotive term. In fact, many people making a claim against persons with paper title to land do so without a (to use another emotive term) “land-grabbing” motive. Mistakes or confusion with regard to maps, or long-held family beliefs concerning ownership of fields or other plots of ground, are examples of matters which are frequently in issue where claims are made for land or other property based on adverse possession. The use of the word “squatters” for the purposes of this memorandum, is intended to cover all persons claiming title based on long possession, whether motivated by greed or otherwise.
How to stop suatters acquiring title by means of adverse possession
Given the severe consequences of the Pye decision and its affirmation of the doctrine of adverse possession in Irish law, the owner of property must be extremely proactive in the assertion of his title to property and in ensuring that no person in occupation of the land is doing so in a manner inconsistent with his title. It is most important that he or she demonstrate an intention to possess.
The following are guidelines which may be helpful:
• The use of a lease, or indeed any written form of tenancy agreement, signed by the parties, is an important step to prevent time running against a landlord in favour of a tenant. However, non-payment of rent for lengthy periods should not be tolerated.
• Where non-residential property is leased, ensure that the tenant agrees to be bound by a written lease agreement drawn up by your Solicitor and that expiry periods are closely followed. If the tenant continues in occupation of the land on expiry of the lease, give them a notice in writing to vacate the property and, if that is ignored, have your solicitor initiate proceedings for recovery of the property and be rigorous in your pursuit of such recovery proceedings. It is the institution of proceedings which stops time running in a squatter’s favour. While this may seem an expensive route to follow, it will be well worth it to avoid losing title to the property altogether.
• In respect of non-residential property that is not leased, regularly check the property to ensure that there is no encroachment by adjoining land owners or other people. Pay particular attention to any animals grazing on the property, any fences not erected by you or at your direction, or any sign that a person or people other than those authorised by you regularly use the property for their own purposes. Report any suspicious behaviour to your Solicitor and take immediate steps to block the occupation of the unauthorised person.
• When leasing residential property, also have your Solicitor draw up a lease agreement and ensure that the lease is registered with the Private Residential Tenancies Board. Review the lease regularly having regard to the suitability of the tenant to the property and to your situation and consider your future plans for the property so that adequate notice periods can be observed with regard to termination.
• As with non-residential property that is not leased, vacant residential property should be regularly checked for any signs of squatters and immediate steps taken to recover possession.
For further information please contact Anna Teehan of our property department on email@example.com