# Squatters Rights



## Kelmar (22 Sep 2005)

An unmarried uncle of mine has a large farm but is no longer able to work it.  He has completely lost interest in the farm and has just gone into a nursing home so does not live on the farm. The farm is worth a lot of money €2-3m. He has leased the land to a neighbour for the past few years but does not have any legal contract.  My father (his brother) has tried to persuade him to put a contract in place but he wont do it.(its too much hassle!)

At what point could this neighbour claim Squatters rights?   What could be done to prevent this happening.


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## dam099 (22 Sep 2005)

Is the neighbour paying rent? Even without a contract once he is paying rent I don't think he would be considered to be squatting or have adverse possession.


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## MOB (22 Sep 2005)

A tenant can never establish any squatters rights while he is a tenant.   For a "squatters title" to be established, there must be adverse possession -i.e. trespass.  A tenant cannot simultaneously be a squatter.   If you enter as a tenant, it is very hard to change your status and become a squatter.   

If the letting is handled through an auctioneer (as is very common for agricultural lettings), I would not be worried about the possibility of the tenant claiming that there he\she was there as a squatter.   Even though it is not in writing, the auctioneer will obviously have records of the rent being paid etc.

If it is a private leasing arrangement, it is foolish not to put the lease terms in writing, especially if the rent is paid in cash;  how do you prove years from now that there was a tenancy at all?  

As a separate issue, your uncle can avail of a more favourable income tax treatment on the rent if he has a written lease in place.


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## 90210 (23 Sep 2005)

Kelmar I would be worried, very worried about this situation. Your uncle, who is in bad health has permitted someone to use his property is an open and clear manner for their own purpose, to utilise the land. No contract or lease is in place, any terms and conditions or specific conditions.



If you uncle is not collecting rent, or any kind per annum he is in danger of loosing his property. The issue can be remedied very easily with the draft of a caretaker’s type lease agreement with an agreed rent per month. annum etc.



If your uncle fails to establish a proper tenancy agreement, then he could well lose all or a portion of his property. However if the Tennant has paid a rent to your Uncle, whether it is pecuniary or a material payment then you have nothing to worry about. As long as you can establish that the payment is linked to a tenancy - by the way who is looking after the tax on the rental income from the lease?????


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## Marie (24 Sep 2005)

Kelmar said:
			
		

> My father (his brother) has tried to persuade him to put a contract in place but he wont do it.(its too much hassle!)
> 
> At what point could this neighbour claim Squatters rights? What could be done to prevent this happening.


 
Hi Kelmar!  It may well be that your uncle feels apprehensive when family members appear to want to take over his financial affairs during a period when he needs to concentrate on getting his health back.  No reflection on the family's intentions in relation to the land but perhaps your uncle needs to be persuaded to discussion the status of the neighbour and the informal lease and his financial affairs _in general_ with an objective outsider he can trust (friend, priest, doctor, solicitor).


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## Ravima (26 Sep 2005)

you must do something. What if the tenant says in later years, after your uncle has departed, that there was an agreement that he could or could not do something which is against your interest?

Could you get power of attorney on your uncle's affairs to look after this matter?


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## Kelmar (29 Sep 2005)

Thanks for all the input - a few comments on the points raised. 

I really think my uncle is suffering from depression and does not have the energy to sort the situation out because it is too much hassle for him.  My father has not tried to do it for him but has been trying to persuade him to go to a solicitor or auctioneer or any third party to sort it out;  my uncle always says he will but never does - it has been going on for a few years now so I doubt if he ever will.  

Come to think of it I cannot even be certain the tenants are actually paying rent - my uncle says they are but not wanting to interfere in his affairs my father has just taken his word for it. 

He is not physically unwell but since going into the nursing home he has turned his back on everything to do with the farm and his former way of life.

I doubt if my father would want to ask for power of attorney because that would be interfering too much.  I dont know if it would be granted anyway would it - on what basis would power of attorney be given ?

It is really hard to know what to do....because it is the farm my father was brought up on he feels he should do something....but what??


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## Ravima (29 Sep 2005)

i was in a similar position, where after death of landowner, someone put cattle inand it took months to remove him. he basically went on the story tha the had an agreement made, which I have no doubt he did not, but with no paper and nothing at all to go on, we just had to sit it out. Fortunately, we did sort it out within months, but it could go on longer. Its a terrible situation to be in a greedy people can and do take advantage of innocent elderly people.


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## Marie (29 Sep 2005)

Kelmar - It does sound from your amplification of the details in this last post that your uncle would come under the category of "vulnerable adult".  From what you have just posted your father has already tried all the strategies suggested by respondants.  May I ask is your uncle being _treated_ for depression or simply institutionalised?  Are you sure that is the full diagnosis?  Best practice for treatment of depression would be as an outpatient and there is a strong evidence-base that combination of psychological therapy (e.g. psychotherapy, art psychotherapy, counselling, solution-focussed CBT etc) with an antidepressant is optimal treatment.  In the circumstances you have described your uncle _needs_ his brother and yourself and as many family members as can be mustered to support him and that involves sorting out the safety of the farm and the use of some of it by the neighbour.  He won't thank you when he comes home and finds it has been appropriated from under his feet.  

Hopefully you will get a response from one of the legal people contributing to this forum but I reckon in terms of your uncle's vulnerability there may well be processes for next-of-kin to temporarily manage his affairs to protect his interests.  Here (UK) for example if a frail elderly person is admitted to the hospital where I work in a confused state the Consultant Psychiatrists and/or Social Worker usually as a matter of routine take out Power of Attorney to preclude abuse of the vulnerability by family members.

This might be one query the Irish Law Society would respond to without suggesting you 'consult a solicitor'.


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## Kelmar (29 Sep 2005)

Hi Marie

Thanks for your input -  we do not know if my uncle is being treated for depression or not as he is a very private man - I just think his behaviour shows signs of it but I have no medical basis for this.

I doubt he will ever return to his home.  Years ago he had a slight accident which resulted in him having an eye operation; he went into the nursing home following the surgery and has remained their (by his own choice!) ever since.  After years of living alone I think he prefers the companionship of the home where he doesn't have to worry about his own safety.  He pays a lot of money for it but he can afford it and he is definetly happier there.  

Thanks again for your help..


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## Marie (30 Sep 2005)

OK - so perhaps your uncle is being passive at the moment but if his melancholy is being treated - as ethically it should be! - he will come out of this period of his life to a disaster of loss.  Given this is a family farm it would seem dereliction of morally and legal responsibility to let it be stolen (because that's what we're discussing, in plain speech).


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## Marie (2 Oct 2005)

Kelmar - As you have not had any responses from solicitors on this forum perhaps what follows will be of use.  I was clearing out old papers today and came across a file of information compiled when I was trying to manage my mother's affairs in the last couple of years of her life - about 4 years ago.  In a book by John Costello (one of the partners in Costello & Partners, Solicitors, Dublin) he discusses care of the finances of people who cannot for various reasons manage their own affairs:-

_A ward of court is a person who is declared to be of unsound mind and incapable of managing his/her person or property i.e. the ward cannot look after himself/herself physically and cannot manage his/her finances and pay everyday bills._

_The principal purpose of wardship is to protect the property of the ward and manage it for the ward's benefit and the ward's dependents (if there are any).  When a person has been taken into wardship it means the President of the High Court is satisfied on the basis of medical evidence available to him that that person should be deemed to be of unsound mind and is incapable of managing his/her affairs._

_In a small number of cases a person can be taken into wardship primarily for the protection of his/her person (snip)._

_In the majority of cases ie where the person's savings or property is worth more than £5,000 a solicior is instructed either by a social worker or often by a member of the proposed ward's family that a wardship application may be necessary.  The first step is to obtain two medical reports from two medical practitioners, usually on oath, reporting on the health of the proposed ward.  The reports should specify the particular medical condition from which the person is suffering and whether this is likely to be long-term.  The reports should also state the person is incapable of managing his/her affairs.  The court will also appoint its own doctor to prepare a third medical report and if all the medical reports agree that the person cannot manage his/her personal affairs then a wardship order will normally be made._

_An application to bring a person to wardship is usually made by a member of the family.  (snip)  The judge will normally appoint a committee of the person and of the estate of the ward.  The committee is normally one or more close relations or friends.  However the ward's solicitor or even the general solicitor for minors and wards of court can act as committee where necessary.  This may occur for example where there is no suitable relative who is prepared to act or where there is a disagreement among a ward's relatives about how his/her affairs should be managed. (snip)  The committee of the estate is similar to a trustee and can make representations to the wards of court office regarding the ward's property and investments.  The proeperty of the ward is not transferred into the committee's name but is invested by the wards of court office on behalf of the ward.  (snip)  If a property is involved the committee will be responsible for selling it or letting it and must account for the net proceeds of sale or the rental income to the wards of court office (snip) also entitled when authorised to receive monies and make payments._

Different kinds of Power of Attorney and Trusts are also discussed in detail.  I found it invaluable at the time and recommend it.  Your local library may have it on the shelves; title is "_Law and Finance in Retirement'_ by John Costello.


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