“There is a piece of land that has been in our family’s possession for as long as I can remember. However, the land is registered to my great-great grandfather dating back to 1913. My father passed away last April and, at present, I’m in the process of administering his estate.
‘‘My father lived on the land from his birth, with his mother and his grandmother. I’m afraid that if things come out in the open in relation to the ownership of the land that other relations may lay claim on it and be equally entitled to it. I’m unsure what I should do to best protect our assets.”
Everyone has come across situations where farming land is handed down from a relation but the legal formalities were never attended to.
If the land is registered with the Land Registry, the person claiming title to the land must make what is known as a Section 49 application, whereby the applicant can claim the interest of the registered owner by adverse possession, or squatters rights.
How far back should the history of the title of the property be traced?
In this type of application, it is necessary to trace the history of title/occupation of the land from the registered owner, which is your great-great grandfather in this case. As he is deceased, all available information on his successors in title must be furnished. Persons who may have been entitled to the property under a will or under the rules of intestacy are the parties against which you, as applicant, will claim adverse possession.
How long must the applicant be in possession?
A person may be deemed to be in adverse possession of property where he/she is in sole exclusive occupation of the land without acknowledgment to the legal owners and the occupation is inconsistent with the legal owners.
The applicant must be in occupation for the required statutory period and the legal owners have not within that period taken the required action to reclaim their rights. Normally, the applicant acquires title after being in possession for 12 years, or 30 years possession is required to bar a State Authority. This is reduced to six years where the property is the estate of a deceased person but legal personal representatives are not barred except after the full 12 years.
How long does it take to process a Section 49 application?
Notices must be served on affected parties, such as the immediate next of kin, of the registered owner who died without making a will. The notice parties may object, which will cause delays and a successful objection will prevent registration. It is not possible to estimate how long the process will take.
What type of information is required in lodging a Section 49 application?
Your solicitor will help to identify what information should be included in the application, which might include:
Did the registered owner die testate or intestate? Was a grant extracted to his or her estate? Supply the names and addresses of those persons entitled to the estate under the Succession Act or the rules of Intestacy. Lodge original death certificates of all deaths on title.State the name and addresses of the personal representative of the registered owner and the next of kin for the purposes of service of any notices deemed necessary.State the names and addresses of all persons or their successors known to the applicant who would, but for adverse possession, have any interest in the property or who might be concerned with the property in any way.State the use to which the applicant has put every part of the property over the entire period claimed. State the names and addresses of the owners and/or occupiers of all the lands adjoining the property.Unregistered land
If the land is not already registered in the Land Registry, an application should be made for first registration based on possession which entails
(i) Possession for the statutory period will have to be proved (see above) and
(ii) The title against which possession is claimed will have to be identified.
If an applicant can prove (i) but not (ii), it is open to the Land Registry to offer possessory title which can be converted to absolute title when the possessory title has been registered for 15 years. The drawback with possessory title is that the applicant cannot mortgage or sell the property until absolute title is registered. In the case of registered land, part (ii) is apparent from looking at a copy of the Land Registry folio. However, it is not so clear in the case of unregistered land. It is recommended that 40 years’ title should be shown. A good starting point is to get a certificate from the General Valuation Office records, which should show the occupiers and immediate lessors of the property from 1950, together with a map to which the entries on the certificate or extract maybe related. The type of information required in an application for unregistered land is similar to that required in an application for registered land.
Where the title has skipped a generation, it can be a difficult complex process to remedy the matter.
“There is a piece of land that has been in our family’s possession for as long as I can remember. However, the land is registered to my great-great grandfather dating back to 1913. My father passed away last April and, at present, I’m in the process of administering his estate.
‘‘My father lived on the land from his birth, with his mother and his grandmother. I’m afraid that if things come out in the open in relation to the ownership of the land that other relations may lay claim on it and be equally entitled to it. I’m unsure what I should do to best protect our assets.”
Everyone has come across situations where farming land is handed down from a relation but the legal formalities were never attended to.
If the land is registered with the Land Registry, the person claiming title to the land must make what is known as a Section 49 application, whereby the applicant can claim the interest of the registered owner by adverse possession, or squatters rights.
How far back should the history of the title of the property be traced?
In this type of application, it is necessary to trace the history of title/occupation of the land from the registered owner, which is your great-great grandfather in this case. As he is deceased, all available information on his successors in title must be furnished. Persons who may have been entitled to the property under a will or under the rules of intestacy are the parties against which you, as applicant, will claim adverse possession.
How long must the applicant be in possession?
A person may be deemed to be in adverse possession of property where he/she is in sole exclusive occupation of the land without acknowledgment to the legal owners and the occupation is inconsistent with the legal owners.
The applicant must be in occupation for the required statutory period and the legal owners have not within that period taken the required action to reclaim their rights. Normally, the applicant acquires title after being in possession for 12 years, or 30 years possession is required to bar a State Authority. This is reduced to six years where the property is the estate of a deceased person but legal personal representatives are not barred except after the full 12 years.
How long does it take to process a Section 49 application?
Notices must be served on affected parties, such as the immediate next of kin, of the registered owner who died without making a will. The notice parties may object, which will cause delays and a successful objection will prevent registration. It is not possible to estimate how long the process will take.
What type of information is required in lodging a Section 49 application?
Your solicitor will help to identify what information should be included in the application, which might include:
Did the registered owner die testate or intestate? Was a grant extracted to his or her estate? Supply the names and addresses of those persons entitled to the estate under the Succession Act or the rules of Intestacy. Lodge original death certificates of all deaths on title.State the name and addresses of the personal representative of the registered owner and the next of kin for the purposes of service of any notices deemed necessary.State the names and addresses of all persons or their successors known to the applicant who would, but for adverse possession, have any interest in the property or who might be concerned with the property in any way.State the use to which the applicant has put every part of the property over the entire period claimed. State the names and addresses of the owners and/or occupiers of all the lands adjoining the property.Unregistered land
If the land is not already registered in the Land Registry, an application should be made for first registration based on possession which entails
(i) Possession for the statutory period will have to be proved (see above) and
(ii) The title against which possession is claimed will have to be identified.
If an applicant can prove (i) but not (ii), it is open to the Land Registry to offer possessory title which can be converted to absolute title when the possessory title has been registered for 15 years. The drawback with possessory title is that the applicant cannot mortgage or sell the property until absolute title is registered. In the case of registered land, part (ii) is apparent from looking at a copy of the Land Registry folio. However, it is not so clear in the case of unregistered land. It is recommended that 40 years’ title should be shown. A good starting point is to get a certificate from the General Valuation Office records, which should show the occupiers and immediate lessors of the property from 1950, together with a map to which the entries on the certificate or extract maybe related. The type of information required in an application for unregistered land is similar to that required in an application for registered land.
Where the title has skipped a generation, it can be a difficult complex process to remedy the matter.
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