We recently cleared 30 years of brambles from my mother’s back garden and discovered the neighbour behind her has built a shed on her land. I do not know how long ago it was built.
The shed is a brick structure and he is refusing to remove it.
We have checked Land Registry maps and the shed is very clearly 80 per cent on my mother’s land.
My mum has passed away and we are worried how we sell the place with this issue with the neighbour. What are our options with this scenario? We are worried if we have to go to court, the legal costs will eat up our mum’s inheritance.
Ms LH, email
You’re right to be worried. Everyone thinks their home is their castle and that Land Registry title to what they own is proof against any challenge. But that is not necessarily so (though it usually is). And any confusion over ownership will most certainly make it well nigh impossible to sell your mum’s home.
The key issue here is what is called "adverse possession", more frequently referred to as squatter's rights. The knock-on issue as far as selling the house is concerned is certainty, or clarity.
There appears to be no dispute that this brick shed is sitting astride the boundary line with, by your reckoning, around 80 per cent of it on your mother’s land. Unless it is a totally disproportionate in size, it is most unlikely that your mum’s neighbour will have required planning permission for this shed. So you will not have any grounds to challenge them there.
The question is how long it has been there.
The law on adverse possession generally requires the squatter to prove certain things – and it is the "squatter" who has to prove it. Chief among these is that they have been in possession of the property, or land, for a minimum uninterrupted period of 12 years.
Unless your neighbour is willing to concede, you are facing a legal challenge and that could be expensive
The danger here, given how long the brambles have been allowed to take over your mother’s garden, is that without subterfuge but also without permission and without being visible to your mother or any of you, this neighbour openly built on your mother’s land more than 12 years ago and was never challenged until the brambles were recently cleared as you prepared the house for sale after her death.
So what now?
Registering the claim
First, you could check with the Property Registration Authority (PRA) whether your neighbour has made any application for adverse possession as they would be required to do. If they have, it should show the details of when they claim to have taken sole possession of the land. They would have been required by the authority to provide corroboration for such claims.
If they have registered adverse possession and the application has been accepted by the authority, any legal challenge by you has little chance of success – although as all lawyers will tell you, each case is judged on its individual merits.
The lack of such an application to the PRA does not mean they could not now make one but it is a useful first step. If there has been no application, you might want to see if other neighbours can help you with any details of when that shed was built, or the land otherwise exclusively occupied (for instance by fencing it off and using it as part of their garden).
It certainly would be sensible to have your solicitor issue a formal legal letter, if for no other reason than to stop the clock on the time they can claim the adverse possession went uninterrupted. That would not cost much in itself. At least, you will then know how far back the 12 years the neighbour has to prove adverse possession goes.
Also, check your mother’s papers carefully to see either if she challenged the shed at any point or if she in fact agreed to its siting, in which latter case you would also have no case.
But, either way, unless your neighbour is willing to concede, you are facing a legal challenge and that could be expensive. Unfortunately, I cannot see any other avenue and that is why you would want to be fairly confident that the shed has not been in place for more than 12 years.
Legal certainty
Will that potentially deplete the estate and any potential inheritance? Yes, but one way or the other, you are going to require certainty before you put the house on the market. The solicitor for any potential new owner will require certainty over what exactly their client is buying and that may need a resubmitting of Land Registry documents to take account of this adverse possession if it is conceded or proven.
This is a cautionary tale. Property owners are expected to monitor their perimeters and make sure that the integrity of their property is maintained. If someone can take exclusive possession of land in a way that injures the rights of the owner, and does so clearly and openly, you will be in trouble if that adverse possession extends for more than 12 years.
It is very unfortunate that these brambles were allowed to take over so much of the garden over such a protracted period that no one could literally see to the end of the garden.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
