LAST WEEK, A Dublin woman secured a quarter-acre addition to her back garden from Dublin City Council.
Mary Byrne, of Marino, Dublin, was granted a plot of land behind her house that had belonged to the council, after she proved she had been in ‘adverse possession’ of it for 12 years.
The land was left over from a construction site in 1934. It had been the then-Dublin Corporation’s intention to grant allotments to those whose rear gardens had a boundary with the leftover land.
However, the land was leased to Byne’s grandfather who occupied it for a few pence a year. After he died, the Byrne family kept possession of it. Eventually, rent stopped being paid and Mary Byrne took over possession of the land.
So, how did that happen? What is adverse possession? And is it common?
What is adverse possession?
Adverse possession (also known as ‘squatter’s rights’) is when a person or party can claim a right over land or property (which they originally had no legal title to) after they had been in occupation of the land for more than 12 years.
To claim for adverse possession, a person has to be able to prove that they have been in continuous, uninterrupted occupation of the property for 12 years. They can then lodge an application with the Property Registration Authority (PRA).
Adverse possession cases can arise between private citizens, or – as was the situation with last week’s case – between a citizen and the State.
The period required to benefit from adverse possession extends to 30 years when it’s land owned by a state authority.
How can a person defend against adverse possession?
According to property law solicitor Susan Cosgrove of Cosgrove Gaynard Solicitors, last week’s case shows how easily claims of adverse possession can arise.
Dublin City Council was aware that Mary Byrne was occupying the land that they legally owned. They issued an eviction notice in 1995/96 but never followed up on it.
Byrne was then left in adverse possession of the land, and was able to lodge her claim years later.
According to Cosgrove, the council could have avoided this easily a number of ways:
Is this normal?
According to Cosgrove, cases of adverse possession are still quite common in Ireland.
“It is commonplace still. You would have thought it had died off by now but we still see a lot of cases,” she said.
It is something all landowners should be fully aware of.
Cases of adverse possession generally don’t go to court as it’s quite clear-cut when a person is entitled to claim possession of the land.
Cosgrave said that generally Dublin City Council would have a handle on any land or property in its possession. For example, in other areas of Marino leftover land had been sold to residents there for a small fee to add to their back gardens.
This was what was intended for the land that Mary Byrne occupied, but for whatever reason the council never took possession of it for this purpose.
Cosgrove said that she has had similar cases where people have successfully shown they have adverse possession over lands held by the council. They can then pay a small fee (about €130) to have the freehold title transferred to them – meaning that they own the land outright.
Alternatively people can register a possessory title with the land registry. This means that the person cannot mortgage or sell the property until they achieve the absolute title of ownership.
What should you do if you think you’re in adverse possession of council land?
If someone thinks they qualify as having adverse possession of land or property, owned by the council or by a private citizen, then they will need to lodge a claim with the Property Registration Authority.
They will need a solicitor to help them draft a long and detailed application and declaration setting out their claim to the land or property.
According to Cosgrave, the declaration will include information on how long the person had been in adverse possession and what action they had taken to secure ownership (i.e., fenced off the area, maintained and insured it, etc).
“Each application is considered on its own merits – no two cases are the same,” said Cosgrave.
The Property Registration Authority will notify whoever was last registered as owning the land and if they dispute the application, the matter will taken to court.
If the claim is not disputed, or if it is settled in favour of the person in adverse possession, they will then be given the possessory title by the land registry.
TheJournal.ie has contacted Dublin City Council in relation to other cases of adverse possession and the mechanisms it has in place to keep track of its lands, but had received no response at the time of publication.
- With reporting from Ray Managh
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