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Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10528
Experience:  Barrister 17 years experience
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My father bought 3 fields of his cousin in 1958 two was

Customer Question

My father bought 3 fields of his cousin in 1958 two was registered on wasn't a mistake on solicitor side .They are both dead now . Father cousin lived in the uk since 1958 and we had use of his remaining farm he died in 2010 .The remaing farm was promised to me but went into another party through a fraudulent tranfer as he had no capacity for consent since 1986 and we have the medical records to prove this now .The other party don't farm and live 60 miles away .The other party came on to one of the 3 fields and started to fence it of from our as it forms part of our farm.I sent them solicitors letter to take it down by a certain time and if it wasn't taken down I would take it down I informed the Garda of the situation that I would be taking it down and also rang them the morning I took it down .Now the Garda are prosecuting me for theft of a fence directed by the Dpp some nine months solicitor tells me that I wouldn't have much chance going for adverse possession as he would have know I was farming the land and even the field in question it's very hard to find a expert in these matter as no one seem to know the answer and judges seem to be in favour of registered owners .was I right to take down the fence and what will happen in court now will I be prosecuted . And what can I do to protect my stom and my interest in my cousin remaining lands I'm still farming it .my father cousin had no will he died in the uk .
Submitted: 1 year ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 1 year ago.
1. I don't meant to rain on your parade, but I regret to say that both the Gardai and the DPP believe you have acted in a high-handed manner in this dispute so youw ill end up with a criminal conviction from what has occurred. Essentially, the Gardai almost always leave these sorts of dispute to civil remedy. However, here, you clearly overstepped the mark.
Expert:  Buachaill replied 1 year ago.
2. The law always favours the registered owner. Title is paramount and if you want to go around taking down fences, you just have to take the consequences. The solution here is to litigate the issue of any fraudulent transfer. Not engage in guerrilla warfare by taking down fences.
Expert:  Buachaill replied 1 year ago.
3. Your best approach to this issue is to get yourself a solicitor who will issue proceedings in which you seek to set aside the fraudulent transfer and raise the issue of adverse possession to the land. At least, appear as if you act within the law. However, you are likely to be squashed by the local District Justice in this prosecution because you are seen to be acting outside the law - as an outlaw!
Expert:  Buachaill replied 1 year ago.
4. At this stage you need to mend your hand. Currently the perception of you is that of an outlaw. So you need to go down the legal route and ultimately avoid a heavier sanction for what has happened.
Expert:  Buachaill replied 1 year ago.
5. Please Rate the answer as unless you Rate the answer your Expert will receive no payment for answering your question.
Customer: replied 1 year ago.
There was never a fence there they cut my trees down am I not entitled to protect my lands .Even in normal siaution on erecting a boundery fence you must be entitled to surverys you just can't go around erecting fences where ever you think.On adverse possession as far as I'm concerned I own the field ,am I not entitled to strenuously defend
Customer: replied 1 year ago.
I didn't take a whole fence down I took down part of a fence they started to erect they left fencing materials on my land they didn't act within the law they tried to take the field back by force .I already sent them a solicitors letter for a letter of rectification on the field but they declined .And I sent them a letter to take fence down .The Gada ask if I wanted a squad car present while I took away part of fenc the field is enclosed with in my land .
Expert:  Buachaill replied 1 year ago.
6. These are good grounds on which to defend your criminal prosecution. So you should speak with a local criminal defence solicitor and make clear your position. It is important to put forward a full defence, particularly that the Gardai asked you did you want a Squad car present whilst you took away part of the fence. However, I would still advise you to litigate the issue over the field. This is prudent policy if you want to avoid spending time in jail.
Customer: replied 1 year ago.
what your saying is that the new owner had the right to come on to my lands and the field in question which I have exclusive possession for sixty years start cutting trees down where there is no fence for over seventy years start removing my animal start fenceing with out any legal notices court orders nothing and my parents grew the trees on on the bounder sixty years ago for shelter .The original owner had no capacity for concent since 1986 and died in the uk without a will.If I had applied for adverse possession and didn't send them a solicitors letter to take it down and informed two Garda stations the court would look at me to be negelence for not protecting my property simailar if I told a person that the person that own the field was dead and gave that evedence in court the judge would Agree that i didn't defend it was mine .Im to be acussed of theft of fencing material to value of 580 euros is it a summary offence or Indictable offence .
2) Did I have the right to stom them fenceing and cutting trees down and take part fenced down.
I am applying for adverse Posession who do I have the adverse against the new owner or the orignal owner .
Do I know report the tranfer to Garda fraud squad as I know have all the medical reports from the uk hospitals consultants nursing home etc that my cousin orignal owner had no capacity for consent.
Expert:  Buachaill replied 1 year ago.
7. You have presented your case very eloquently and I agree with you that the new owner has no right to come on your land and start cutting down trees when there is no fence for over seventy years. If you present your case as well in court, you will certainly win it. A judge will be greatly impressed with such an impassioned defence. In this way, you can win your case and overcome the charge against you. If you believe you can present your case this well in court, then you should represent yourself. There is no one better to put forward their case than a person themselves.
Customer: replied 1 year ago.
Thanks for your reply.Is it a summary offence or Indictable offence as summons was raised some 9 months later .
Who have I got the adverse possession against the new owner or the orignal owner .what do I do if this happens again .
I am applying for adverse Posession and I am going to get a solicitor to defend.
I would like your expert advice on these maters .Also can this be knocked on the head first day in court .
Expert:  Buachaill replied 1 year ago.
8. This can definitely knocked on the head the first day in court. Simply move for a direction at the outset. You will have to read the Summons to know if it is an indictable offence or a summary offence. However, I bet that it is only a summary offence. Adverse possession must be claimed against the current owner, not the past owner. You should come out of this without any problem.
Customer: replied 1 year ago.
How do I know if it is summary or Indictable offence the summons just says that I'm to be accused of the theft of fencing materials in the District court to the value of 580 euro .If it's summary are the not out of time as they applied for summons 9 months later .Is six months not the time allowed in a summary offence.And what should I do if in the meant time they tried again. They obviously seeked legal advice and there only option is to get possession by force .
Expert:  Buachaill replied 1 year ago.
9. You will have to ask a fresh question if you wish to know the answer to these questions. Mark it "Criminal law" and ask that it be answered. HOwever, Please Rate the answer to this question to finish the question thread.