# Section 49 Registration of Title under adverse possession



## Medman (29 Jan 2011)

I would like to get some thoughts on a Section 49 Registration of Title under adverse possession.

My uncle has lived in a property all his life and last year initiated a Section 49 Registration of Title under adverse possession.
There is a registered title and folio number under the name of a great granny of my uncle. Without going into detail it was never sorted out over the years [reg of title is 1925]. Several generations never bothered to get the affairs in orders with no wills ever made - a bit of a mess to be honest!
Anyway all was going well and the case appeared strong [solicitor made application] - As stated Uncle lived there all his life. 
Anyway starts to get complicated - over Christmas my uncle passed away and my father, as his only brother, was sorting out his affairs [guess what... no will again!] Anyway the section 49 registration was
proceeding and this week my father got a letter indicating that unless any objections - would be processed within the 21 days.
Now more complication arises - an aunt of my father now believes that she is the rightful owner of the property. She believes that as
my uncle is now deceased the adverse possession no longer applies. As she is the closest living relative to the registered owner she
would be the owner. She hasn't lived in the property for 30-40 years.

I would like to find out if the application started by my now deceased uncle can be completed by my father and as such the property would belong to my unlces state? We will follow up with solicitor but just want to put this out there.


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## j26 (31 Jan 2011)

A couple of points;

The Land Registry can't knowingly register a deceased person, so the correct course of action now is to inform the solicitor that your uncle is deceased so he can withdraw the application.

The correct person to make a new application would be the person(s) entitled under his estate. Probate will have to be extracted, and the personal representative will have to assent to vest the property in the new people who would then make the application for ownership.

Unless your uncle is married and/or has children, or his parents are still alive, your father (and any other surviving brothers and sisters) would be the closest relatives for succession purposes since he died intestate.

Once a persons title is barred under the Statute of Limitations, it is barred forever - i.e. once your uncle barred the aunts interest, any interest she had is gone and she would have to retake possesion for at least 12 years to establish any claim to the property.  To get to the point of notices being served and waiting for objections, your uncle would have to have shown a decent prima facie case that the aunt is barred, so the fact that he is deceased doesn't change anything for her- if she was barred before he died, she's still barred. Since she didn't live in the property for the last 30-40 years, it's very unlikely that she has any claim.

The big caveat is that with adverse possession, the facts are everything, so have a good chat with the solicitor to go through the case in detail.


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## nuac (31 Jan 2011)

Good reply J26. Obviously you have been around the block on Section 49's.

I recall dealing with adverse possession cases under the 1891 Act. They were dealt with by notice of motion to the Circuit COurt. At one sessions the Judge would direct further notices to various parties and any further enquiries. Assuming these were done for next sessions and there were no objections, you obtained a court order for registrations of the applicant. We used to complain because all this could take 4 to six months.     

While the LR / PRA have speeded up the process in recent years, many were taking much longer than 4 to 6 months.


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## flash1 (6 Apr 2011)

*Limitations*

Is it true that the time required for adverse possession is 6 years if the owner is deceased and there was no will or personal representative?  

I remember hearing it before but can't find a reference to it.  Also, for state land its 30 years, except for county council?


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