Are we entitled to fell the trees and clear the wilderness next to our home?

My property is effectively a small cottage with outbuildings on a plot of 0.1610 hectares within a 20-acre field, which is sublet to a local farmer by the landowner whom we have met just once in the 21 years we have lived here and who was, at some stage, a previous resident and owner of this property. He now lives about 10km away.

To the left of our property, and adjacent to it, is a small wilderness containing a dozen or so tall trees (40 feet high), part of a derelict building, riddled with asbestos, and covered with wild undergrowth. We had been told by the landowner that the left boundary of our plot was the near wall of this building and, as the plot was unfenced when we moved in, we had no reason to doubt this.

However, after living here for some five years, we had occasion to acquire the actual deeds from the Land Registry and show them to a qualified surveyor and he confirmed that this wilderness, measuring some 7m to the left and then some 40m back to the road, actually belongs to us.

My wife is in her late 70s and I am in my early 80s. We bought this property as a “fixer-upper” after a decline in our personal circumstances. Since then, we have spent a lot of time and money in upgrading it and making it comfortable for our old age. Discussing this matter with one of our children recently for the first time, it was pointed out that we would be legally liable if, say, one of the trees were to fall on the road and cause damage. This is now causing us much anxiety which we could do without so I have two queries that I hope you can answer:

Owners of property to rear of mine removed its roof - resulting in mould on my wall. What can I do?

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Our new new combi-boiler breaks down every night. What can we do?

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How much tax will I pay on my Irish rental property when I move overseas?

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Are we entitled to fell the trees and clear the wilderness next to our home?

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1. Are there any grants or incentives available to us nationally or locally to clear this wilderness area and make it safe? My wife and I are now old, not in great health, and living on slightly above the basic State pension, with few savings.

2. What, if any, is the position of the landowner? He is under the impression that he owns this small piece of land, although he has never used it or fenced it in the 20-plus years we have lived here. He presumably has no legal title to it or “squatter’s rights”? Having spoken to him just once some years ago, we have no interest in discussing this with him. We should be most grateful for any advice you can offer.

Your second question, on the ownership issue, is the more pertinent question, so I will address it first.

It is not clear from the information provided if the boundary shown on the Land Registry map you have provided with your query coincides with the boundary as defined by the deed/deed map. Irrespective of this, your surveyor is correct in using the deed/deed map to determine the extent of your property, as it is definitive and takes preference. The Land Registry map contains a statement that its boundaries are non-conclusive.

However, the question of ownership of the wilderness area may become an issue if it was not, as you indicate, fenced in as part of your property. Based on the co-ordinates on your Land Registry map I have determined that all of the lands adjoining your registered lands are registered, presumably to the landowner you refer to. This means that if your property as defined by your deed extends outside the boundary as indicated on your Land Registry map and includes the wilderness area, then this area is registered to the adjoining landowner. This will be problematic for you if the landowner claims adverse possession. If, on the other hand, your deed and your Land Registry map are in agreement in relation to the extent of your property, and there is a boundary feature such as a fence, hedge or wall, that encloses your property accordingly, a claim of adverse possession against you would be less likely to succeed.

Before you consider any action concerning the trees you will need to get legal advice to clarify the ownership status of the wilderness area you describe. To get informed legal advice you will first need to present your solicitor with map-based definitive information. This map should show the boundary to your property as defined by your deed, the boundary as indicated on your Land Registry map, the extent of the wilderness area, the precise location of physical boundary features, such as fences, walls or hedges and notes stating the length of time these boundary features have been in place. Based on this information your solicitor will advise you in relation to the extent of your ownership and the risks involved in getting involved in a protracted and possibly stressful dispute if an issue arises over ownership.

In relation to the question of clearing the wilderness area, I am not aware of any grant or incentive, as it appears to be a question of routine maintenance of an area that has been neglected for many years. The 2014 Forestry Act sets out the requirements in relation to management and felling of trees. The regulations are too numerous and detailed to outline here, suffice to say they are restrictive. However, there are exemptions for trees within 30m of older buildings and dangerous trees within 10m of a public road.

If your solicitor reassures you on the ownership issue you should consult the felling section of the Department of Agriculture’s forestry division in relation to information on relevant issues including a felling licence, exemptions and insurance.

Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland.

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