A Squatter – friend or foe?

On the 1st of September 2012, England and Wales passed legislation criminalising all acts of squatting, subjecting squatters to arrest, fine and imprisonment. Will Ireland follow in this direction?

At first glance, it seems that there are no rationales to the law of adverse possession and that squatter’s rights fly in the face of common sense, depriving the ordinary citizen of his right to peaceful enjoyment of his property and granting to the squatter an undeserved benefit. The potential abuse of this right is that which motivated the change of legislation in the UK. However the position of the Irish courts is to look more closely at the rights, and analyze their effect within a rural Irish setting. It appears that within this setting, adverse possession does in fact, indirectly benefit the community in which the squatter resides.

Nevertheless, it is accepted that rights of adverse possession are open to abuse. In attempting to discourage potential abuse, the law provides that a squatter must be in uninterrupted possession of private property for a minimum of twelve years before ownership rights can be claimed. The law also recognises all acts of interruption by or on behalf of the owner, no matter how slight, as sufficient in order to restart the twelve year clock running again as against the squatter. For example, acts of painting doors, fences, entering with a key and gardening. In this regard, only property which has been absolutely abandoned for twelve years can be claimed adversely. The question may be asked, is this sufficient? By contrast to the UK, Ireland considers that it is. Irish courts maintain that a balance must be struck between the protection of the owner's rights and the rationales in favour of the squatter's rights.

The first rationale refers to the maintainence of value in property. Property left abandoned for substantial periods of time is liable to be inhabited by drug dealers and antisocial youths, attracting acts of vandalism and violence to the community as a whole. It is accepted that the antisocial use of property reduces the value of all other property within the area and thus, if a squatter invests money in the upkeep and the productive use of property, that use is warranted and justified.

The second rationale refers to the strengthening of legal title. Squatters rights reduce the risk of previous owners claiming possession by extinguishing all prior claims to that property. It ensures that when a property is purchased, it's title is good, it has marketability and can be sold again.

The third rationale refers to the benefits that are to be reaped from active and productive use of land. This rationale is particularly relevant to rural Ireland. Farmers that tend to herd sheep across narrow strips of neighbouring land in order to get to their own, after twelve years are deemed to have a legal right of way over that land. The benefit that is reaped from the productive use of the land is viewed as that which outweighs the owner’s right to its use. Many cases of adverse possession relate in fact, to neighbours unknowingly encroaching on other neighbour's lands due to map ambiguity.

The fourth rationale refers to squatter’s rights as rights which assist in the transfer of unregistered land from parent to child. This policy is particularly relevant to rural Ireland as much of the land remains unregistered and thus, passes through squatter's rights. It seems that families are either deliberately deciding to save money and not apply to have their property registered or are ignorant to the legal formalities. In any event, the child remains as a squatter in possession of his parent’s property up until the twelve year period has expired, at which point he can claim full ownership.

It seems, therefore, that squatter's rights do serve a positive purpose to society and are deceptively accommodating, particularly in rural Ireland. It is the family scenario and the right of way scenario that which is most common in Ireland, and not that which involves serial squatting as a means of earning a living. Perhaps it is for this reason that the Irish courts are reluctant to change the laws.

However, I now must ask, is the applicability of the rationales to rural Ireland that which should outweigh the true owner’s right to peaceful enjoyment of his property? And, at what point do these rationales cease to have a role in rural Ireland?

On the 1st of September 2012, England and Wales passed legislation criminalising all acts of squatting, subjecting squatters to arrest, fine and imprisonment. Will Ireland follow in this direction? Only time will tell.

Gráinne O'Callaghan