SQUATTER'S  RIGHTS,  or   Adverse  Possession

    Adverse possession refers to the occupation of land against the interests of the real owner by someone who does not have title to it. The adverse possessor, or squatter, must intentionally possess the land (and prevent both the world at large and the rightful owner from using it) in a way that is adverse to the interests of the proper owner (ie. he must not be holding the land as a tenant or licensee) and he must act as if he were the occupying owner and demonstrate that no-one else has so acted.

    It is possible for a squatter to obtain title by adverse possession if the owner has failed to demonstrate his ownership of the land for a prescribed period (usually 12 years). For example, if your neighbour takes possession of part of your land, fences it off, locks any access gates (to prevent you enjoying its use) and "cultivates" or otherwise uses it for the prescribed period as if it was his own, then he might eventually be able to have the annexed land legally transferred to him.

    It is your responsibility as a landowner to prevent wilful encroachment upon your property. If you fail to do so, or fail to take action to recover any land encroached upon, within the period prescribed by the Limitation Act then you are in very grave danger of losing title to the affected land.

    Gaining repossession of your own land once it has been encroached upon is a difficult and serious matter and should not be undertaken lightly. There are only two actions you might contemplate:

a. Physically repossess the land. This is not an action to be undertaken lightly because you will have to be prepared to defend the land against counter-measures by the squatter. It will require the removal of any fences and/or other perimeter features erected by the squatter, and the erection by you of fencing or other perimeter features on the correct boundary alignment.
The danger in attempting to repossess your land is that your neighbour will call in the police on the grounds that you are causing criminal damage to his fence. The police are concerned with criminal law, not civil law, and won't understand the boundary problem. The result is that they will treat you, and not the encroaching neighbour, as the party that is in the wrong.

b. Commence a legal action. Get a chartered land surveyor's opinion on where the boundary is (e-mail me) and ask your solicitor to write a strongly worded letter to your neighbour, with a view to taking your neighbour to court (there is always a chance your neighbour will back down when faced with the threat of court action).

What you should do
Engage a chartered land surveyor to investigate the encroachment (e-mail me) , and advise you whether or not the squatter has an unassailable case. If he has not and the surveyor so advises, then discuss with your solicitor the pros and cons of repossession and of commencing a legal action.
What you should NOT do
You should not even consider writing to the encroacher to politely ask for the return of your land unless you are prepared to immediately follow up his reply with either repossession or the commencement of legal action. Your letter would be taken by a court as confirmation by you that the encroacher was in fact in possession of your land adverse to your interests, and this would only serve to strengthen your neighbour's claim.

This page last updated 09 March 2002