One of the e-mails that I received in response to last week’s article was the following:
“How does one go about establishing a claim by adverse possession? Is this done through an attorney at law? Is it something to be determined by the court?”
Under Section 3 of the Land (Title Proceedings) Act 2011 one of the people who can apply for a declaration and certificate of title to land is a person who, though not in possession of documents of title, claims ownership of an estate or interest in land by adverse possession.
The Land (Title Proceedings) Act provides a form which must be used when making an application for a declaration in respect of ownership of land and a certificate of title.
Section 5 of the act sets out the evidence of title which is required to support an application for a declaration of and certificate of title.
The circumstances of the case will dictate what evidence will be required.
Where a claim is based on adverse possession the claimant is required to support his/her claim by the affidavits of at least two people as to the evidence of the possession or enjoyment of the land.
Additionally, a plan must be filed with the application. That plan must be not more than ten years old prior to the presentation of the claim unless leave of the court is obtained to accept an older plan.
A claimant must also file an affidavit disclosing all adverse claims which have been madeor that can potentially be made with respect to the land, which are within his knowledge.
The affidavit must, among other things, also state that, to the best of his/her knowledge information and belief, full disclosure has been made to the court of all matters relevant to the declaration of ownership and the certificate of title signed by the claimant.
As you can see from the above, a claimant will, as far as possible, be expected to produce to the court all information that can establish his/her title along with anything that can cast doubt or be a challenge to the title. There is therefore, a duty on a claimant to make full and frank disclosure to the court.
Of course, it will be necessary to use the services of the attorney at law. However, it will be for the court to determine whether a case has been made out to support the application for a declaration of ownership and a certificate of title.
• Cecil McCarthy is a Queen’s Counsel.