Adverse possession??

Pixie Chief

Not looking at all for legal advice, merely opinions? A friend (nasty separation) whose house is in partner's name is in a bit of a pickle. House is in dispute (no mortgage) and due to go to court soon. She has taken most of stuff out of house (including other items in dispute) and gone to another country. Solicitors and guards have advised moving in and taking possession. I feel she is unlikely to return as further court actions and likely prosecutions pending but all the same feel a bit .....hinky.. about it. I'm sure there is lots of fine detail I don't know that solicitors and guards do but any opinions? I feel like I wouldn't if it were me.

Victor

If there is any hint of it going legal (I think we might be past that point), talk to a solicitor.

I'd be looking at the Family Home Protection Act.

I don't think adverse possession really applies.

handlemaster

If he didnt buy the house which it sounds like just move on. The relationship is over.

Pixie Chief

He inherited house - fraud involved in it being in her sole name now. Legal wrangling for 4 years and now when it's finally due to go to court, she jumped ship. This will dramatically delay proceedings and so solicitors and guards told him to move back in but it's not in his name. I can see why he wants to and why they think he should. Was just wondering if others would move in or not?

handlemaster

Without knowing full facts its hard to sa y. If i felt it was my home yes

Pixie Chief

He feels very strongly about the place - 4 generations of his family lived there. Last link with his dad. I don't know all the details either...

the world wonders

and so solicitors and guards told him to move back in

If I were in this situation I would trust in the advice of my solicitor. If the guards were also giving me identical advice then I would really need a massive reason to ignore them both. Feeling "hinky" wouldn't do it for me.

MarkAnthony

Paper/Legal ownership is exactly that, there is an entire area of law dedicated to beneficial ownership of property. While it won't be looked on favourably if legal ownership has been manipulated for fraud it's not always fatal.

Do what you're being advised to do by your solicitor. While I won't pass comment giving you legal advice on what to do this is very unlikely to ever give rise to adverse possession.

In all honesty what is he worried about a trespass charge? It might help to identify exactly what the issue is with moving back in and take specific advice on that point.

Marcusm

If he inherited his family's property, how did it come to be registered in her name? Sounds as if there is so,e further back story which might indicate your friend's hands are less than spotlessly clean.

Pixie Chief

Marcusm wrote: »

If he inherited his family's property, how did it come to be registered in her name? Sounds as if there is so,e further back story which might indicate your friend's hands are less than spotlessly clean.

No, actually. It was left to him, she was executor and probated into her own name. Forged signatures for both him and his father. There is evidence for that - dead men can't sign things and he wasn't there to sign. He didn't want to prosecute so has followed civilly for 4 years. Due in court in a few weeks - it was all going to come out in court and now she has packed up and gone. Legal representation may well be dropped here so no choice but to start proceedings again in a new country and go to guards for stolen items. He was indeed worried about trespass and I couldn't understand the legal foundation for solicitors/guards telling him to move back in. Thank so much, Mark Anthony, for your insight in particular, it seems he has always been the beneficial owner of the property while she has been the legal? owner on paper. It's a mess though because she would have statutory rights to some of it regardless so no idea what what will happen or how it will all work out....

Marcusm

Pixie Chief wrote: »

No, actually. It was left to him, she was executor and probated into her own name. Forged signatures for both him and his father. There is evidence for that - dead men can't sign things and he wasn't there to sign. He didn't want to prosecute so has followed civilly for 4 years. Due in court in a few weeks - it was all going to come out in court and now she has packed up and gone. Legal representation may well be dropped here so no choice but to start proceedings again in a new country and go to guards for stolen items. He was indeed worried about trespass and I couldn't understand the legal foundation for solicitors/guards telling him to move back in. Thank so much, Mark Anthony, for your insight in particular, it seems he has always been the beneficial owner of the property while she has been the legal? owner on paper. It's a mess though because she would have statutory rights to some of it regardless so no idea what what will happen or how it will all work out....

So he believes that he is the only person with an entitlement to occupy the property and this has been confirmed by his solicitor, can't see how adverse possession is involved.

Equally, I cannot see how her absconding and heading to another country changes the forum (court) in which this matter to be determined - the foreign court would be unlikely to have jurisdiction while the Irish High Court would. Keep moving forward with the solicitor would seem to be the appropriate avenue.

Pixie Chief

From my understanding, it doesn't change the forum at all, more that there are difficulties proceeding where only one party is represented? Also the property is only one element of it (some of issues not based here) but the only one he really cares about. I'm not particularly clear about the rest of that. My title was totally incorrect in that I thought that was what the solicitors were trying to obtain but after all helpful info and some reading, I had it completely wrong, as did he. If it had been adverse possession type thing, I personally would have felt odd about it in his shoes but I can see now the legal basis for it. I do feel for him, it's incredibly complex and he is trying to understand it as best he can. I'm lost myself and I'm usually pretty good at getting such things (once they have been explained 20 times using progressively smaller words ��). Thanks so much, you guys. Was just seeking something helpful/encouraging to say as he feels bad about the whole thing, it wouldn't be in his nature to even seek court proceedings. Should have been explained to him more clearly, or perhaps explanation got lost in conversation!

nuac

I have great respect for AGS, but in a case such as this you need your solicitor's advice

AndonHandon

If he moved in and she came back then surely that doesn't mean he has to move out as it would be considered the family home?

peannoir

Hey there, I would like a wee bit of advice/opinion etc if possible. Complicated story - it would not be an Irish property case otherwise!

Without having to go through it all, basically wondering the following. A relative is about to begin the Section 49 process on a property. The reason behind this is as a last resort to retake the property from current majority owner. There are 3 other family members with a 1/12 share each. This person is a non family member, and was willed the property by less than moral means (yes I know, this means nothing). But basically, it is an attempt by the family to get the property (grandparents home) back into the family after years of failed legal attempts by other family members.

He, has been asked by his solicitor to obtain documents such as death certificate for grandmother (she willed property to son who then willed it to this person). He has also been asked to probate the will as this has not been done. He has a strong case for adverse pocession as he has been in use of the property and lands for over 15 years, without interuption. My question is this - why, if he is undertaking Section 49/Adverse Pocession, would be asked to obtain these documents and moreso, probate the will?

Surely, this is not something a "squatter" would be expected to do. I should ad, that at this point, nothing else has occured in this process, such as contacting the others involved etc.

The solicitor he has is not one that I personally put much trust in and I am suspicious that the probate process is merely a money making process for him.

If any of this makes any sort of sense and anyone can share experiences etc, I would be most appreciative. If not, no worries.
Cheers,

P

Pat Mustard

peannoir wrote: »

He, has been asked by his solicitor to obtain documents such as death certificate for grandmother (she willed property to son who then willed it to this person). He has also been asked to probate the will as this has not been done. He has a strong case for adverse pocession as he has been in use of the property and lands for over 15 years, without interuption. My question is this - why, if he is undertaking Section 49/Adverse Pocession, would be asked to obtain these documents and moreso, probate the will?

First, if the solicitor is not trustworthy, get another one. This is the most important thing to note.

Secondly, the Land Registry generally raises queries in relation to s.49 applications. See the Land Registry sample queries re S.49 applications. The first two sample queries read as follows:

1. Did the registered owner die testate or intestate? Was a grant extracted to his / her estate? Lodge evidence of his/her death. Please supply the names and addresses of those entitled to his/her estate under the Statutes of Distribution or under The Succession Act (entitlement under the Status of Children Act 1988 and Adoption Acts must be considered. Whether or not there was any issue of a predeceased child should be stated. Any Grant or unproved will must be lodged. Lodge original State death certificates in respect of all deaths on the title.

2. Please provide full detailed history of the parties against whom adverse possession is claimed and their successors including where appropriate, dates of death with proof of deaths, whether death was testate or Intestate, whether representation was raised, status married / single, Did the deceased leave children including predeceased children? Indicate whether any such predeceased children had issue.

It is unclear to me whether the Land Registry is likely to insist upon the extraction of Grant of Probate for the purposes of a s.49 application here. In any event, even if we had all of the relevant facts, legal advice is not allowed by the forum charter.