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Ask Buachaill Your Own Question
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10115
Experience:  Barrister 17 years experience
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I have a part of the site of my house needs to have a title

Customer Question

Hi, I have a part of the site of my house needs to have a title issue resolved. Could you please advise on the best solution. Details are:The previous owner, we will call them "the Kelly family", purchased the house when it was built in 1958.The builder acquired the land on a 999 year lease from the original freeholder.There was an unused plot of land beside the kelly familys site. This plot was part of the land acquired by the builder (under the 999year lease). Also to note that the original site map was not very accurate, and very crude. Some other boundary issues arose in the same housing estate.
The unused plot was consumed by the Kelly family as part of their site until 201x, when they sold the house. The unused plot is still regarded as being part of the site of the Kelly family home.When the Kelly family sold their house, they signed a declaration stating that the unused plot had become part of their garden, and was in continuous and exclusive use by them until the point in time which they sold the property, and they passed on that interest in the side plot, to me.The Kelly family had previously attempted to regularise the ownership of the unused plot and engaged a Solicitor to carry out an Adverse possession claim on the unused plot. This application failed on a technicality, namely that the freeholder could not access the land because of the leasehold, so the adverse possession claim could not succeed.
Submitted: 1 month ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 30 days ago.

1. What you need to do here is to establish your own adverse possession claim to the land by fencing it off for 12 years and preventing anyone obtaining access without your permission. You won't be able to rely upon the Kelly family's period of adverse possession as it is a fundamental principle of adverse possession law that a freeholder cannot adversely possess a separate leasehold interest, which is a n interest of a lesser degree. Instead you need to hold the land for your own 12 years and establish the adverse possession in your own right free of any claims from the Kelly family. Then you do a first registration and come to own the land.

Expert:  Buachaill replied 30 days ago.

2. I know and appreciate you might wish to use the Kelly family period of adverse possession to establish your claim. However, that is not possible in the current instance, I regret to say. Instead you should establish your own 12 years exclusive possession and make your own claim.

Expert:  Buachaill replied 30 days ago.

3. Please accept or rate the answer as unless you do so, your Expert will not receive payment for answering your question.

Customer: replied 30 days ago.
has something changed to allow a new claim from me succeed while their claim failed?
Expert:  Buachaill replied 30 days ago.

4. Yes, you don't own part of the freehold as well as part of the leasehold. So, you can gain adverse possession, yourself against the actual freehold. The Kelly family tried to gain adverse possession whilst holding two conflicting interests. You don't. So, you can successfully claim adverse possession.

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