“I bought land back in 1994. The farm was completely overgrown and the walls were all knocked, including the boundary walls. My neighbour has put his farm up for sale and it has now come to my attention that there is an acre of my land on his farm that I fenced incorrectly. Over the past 20 years, this plot of land has always shown up on my folio and I am the registered owner of the plot. Also, I have been getting REPS and other payments on this plot of land. Can I take back the land? Can my neighbour sell it or build on it? Can he acquire proper title for it? I am not on speaking terms with my neighbour as he tried to stop me from accessing my own land.”

Before you take any particular course of action in relation to this, you should obtain as much information as possible concerning your title to the land. You should source the original deeds, which hopefully will have a map with dimensions attached, a copy of which can be obtained from the Land Registry.

While you mention that the acre of land is showing up on your folio, it is worth noting that the Land Registry maps have non-conclusive boundaries. You may need the assistance of a surveyor to interpret the relevant boundary information and compare it against the actual boundary fence position on the site.

Assuming you are the person legally entitled to own the acre of land, the question arises as to whether your neighbour has acquired adverse possession – more commonly known as squatters’ rights – on the acre of land. A person can acquire squatters’ rights by being in sole exclusive occupation of property for the required period – generally 12 years. Whether a person is successful in a claim for squatters’ rights depends on the facts and circumstances of the case.

Dispossession

The true owner must have lost his right to the land either by being dispossessed or by having discontinued possession of the land. The acts relied upon by the squatter must be of such a nature that it leaves no doubt in the mind of the true owner that occupation adverse to his title is taking place. Even slight acts of ownership by the true owner over the property during the 12-year period will negate possession.

The squatter must intend to exclude the world at large, including the true owner. This is best illustrated with an example of a court case where a squatter was claiming squatters’ rights, but the court found that the squatter did not have the necessary intention to dispossess the true owner. The court relied on the fact that when the squatter was questioned by the gardaí after an altercation with a fencing contractor a couple of years prior to the court case, the squatter told the guards that the lands belonged to a man in America rather than telling them that the land belonged to himself.

The court found that this answer indicated to them that the squatter did not have the necessary intention to preclude the true owner and all other persons from enjoyment of the property.

Title of true owner

There must be continuous and physical occupation by the squatter of the property that is inconsistent with the title of the true owner. For example, if the land is owned by a property developer and is used by a squatter for grazing cattle until such time as the property is developed, the squatter’s occupation of the land will most likely not amount to an act of adverse possession; it not being inconsistent with the enjoyment of the lands by the true owner.

The statute of limitations stipulates a period of 12 years for the bringing of an action by the true owner for recovery of land from a squatter or 30 years where the land is owned by the State. Thus, if a squatter enjoys adverse and exclusive possession of land for 12 years, which is inconsistent with the title of the true owner, the title of that property owner is said to be extinguished.

Establishing a claim

A mere claim that a squatter has acquired title by being in occupation for the requisite period (usually 12 years) is not in itself sufficient to establish a claim of adverse possession. It is for the squatter to prove the facts on which he/she will base their claim and it is a matter for the court or the Land Registry to decide whether on the facts proved, title has been established. Matters which will be looked at include when the squatter entered into possession, the uses he/she made of the property and the squatter should set out in full the acts of possession.

Your neighbour will have to establish a legal title to the plot of land before someone would be willing to buy it. This could be acquired by him making an application for registration to the Land Registry claiming adverse possession. You will be on notice of such an application and can object to it, which will usually result in the Land Registry refusing to register the application and the matter may then be referred to court. Whether your neighbour would be successful in his claim will depend on his ability to satisfy the criteria set out above.

If you move the fence to take back the land, your neighbour will most likely object, claiming that he is now entitled to be registered as owner. This objection may take the form of an injunction to compel you to maintain the status quo until a full hearing of the case – you should be wary of doing so as you could be liable for the costs of same. As with any such boundary issue, this has the potential to escalate and end up in litigation, in which event it could be a long, stressful and costly process with an uncertain outcome. Avoid if possible, given the amount of land involved.