Uncle's Alzheimer’s means I don't know what was agreed

The solicitors, who are acting in respect of my uncle's estate, have informed me that a neighbouring landowner has been using my uncle’s lands for several years.

I am not certain as to the details, but my understanding is that there was possibly an arrangement in which my uncle consented to him using the lands before he developed Alzheimer’s, as my uncle was no longer in a position to farm the lands due to his advancing years. 

Does the neighbouring landowner have any rights over the lands if he is in occupation? I would be grateful if you would advise.

Dear Reader, 

The neighbouring landowner may have what is known as squatter’s rights, which is also known as adverse possession, which allows a third party to claim ownership of land, which is in the name of another person.

Typically, to do this, the neighbouring landowner would have had to occupy the land continuously for a period of 12 years, and they would also have to have the intention to exclude all others to include the person as the registered legal owner, which would be your uncle.

In the event that the neighbouring landowner could establish the exclusive use and occupation for a continuous period of 12 years, it is possible that he could make an application for ownership.

An application can be made through the Land Registry. Typically, if this is disputed by the registered owner, a court application is then required.

The onus would be on the neighbouring landowner to prove their continuous occupation of the property, and the Land Registry or the courts will examine the evidence based on its facts and circumstances when coming to a decision as to whether adverse possession could be established.

Typically, the court looks at two factors, which are as follows:

• Whether there is a continuous period of 12 years during which the person seeking squatter’s right was in exclusive possession of the relevant lands,
• Was the intended period of possession broken by any acts of possession of the registered landowners?

The neighbouring landowner would have to show to a court potentially that they have consistent and exclusive use of the lands and it would not be sufficient to show us they occasionally used the lands. Examples of this may include carrying out improvements or erecting buildings or fences on the land.

I note that you have stated that you believe there was an agreement, and if you can show that there was an acknowledgement of your uncle’s ownership by the neighbouring landowner, this may potentially negate exclusive ownership, which could lead the claim to fail.

You should check your uncle’s accounts as to whether he received any payments from the neighbouring landowner.

I would recommend that you look into this in further detail as to whether there were any written agreements in place between your uncle and the landowner, such as a license agreement or a lease.

If no such agreement is in place, it would be worthwhile to establish as to whether there are any witnesses, including family members, neighbours or people who may have worked on the farm, who may be able to give evidence as to whether an agreement was in place between your uncle and the neighbouring landowner.

I would recommend that you have your solicitor write to the neighbouring landowner as a matter of urgency to ask that any items that he has placed on the lands are removed and that he potentially vacates the lands, and that if this is not complied with, you may wish to consider instituting court proceedings.

I would advise that you take action as soon as possible and speak with your solicitor.

Stephen Coppinger, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email:  info@walshandpartners.ie 

Web: www.walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, Walsh & Partners 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.