Are we entitled to lay claim to our late uncle’s property?

Property Clinic: The Succession Act has clear rules as to the entitlements of next of kin

William O’Connor, Solicitor and Partner at our firm, recently featured in The Irish Times Property Clinic. You can read the original article here and or read the full article below.

My father and his brother (my uncle) purchased two properties next door to one another in the 1950s as tenants in common. My widowed uncle died intestate in 1985 and my father died in 1998 (he also died intestate). My family subsequently took out probate, which was granted in the High Court in 2019. The family’s understanding was that my uncle’s property became my father’s property by right of survivorship as “tenants in common”. In the process of taking out probate we have discovered that the property next door (my uncle’s) was sold in 1996 without my father’s knowledge to the local district council (now a county council). The council has never registered the purchase of that property in the Land Registry and are vague in reply to our queries and quote GDPR. Despite the passage of time and possible statute of limitations etc., does the family have any claim now on what we understood was our late father’s property?

When property is owned by two or more people as joint tenants and one of the tenants dies, the deceased person’s share in the property passes automatically to the other surviving owner or owners. This is what is called the right of survivorship.

When property is owned by two or more people as tenants in common the right of survivorship does not apply. If one tenant in common dies, their share in the property will form part of their own estate and pass by will or by intestacy.

The key distinction between the two types of tenancy, which are technical legal expressions, is survivorship.

When a person dies without making a will, their property will be distributed according to the provisions of the Succession Act 1965.

Section 3(1) of the Act states: “an intestate” means a person who leaves no will or leaves a will but leaves undisposed of some beneficial interest in his estate”

Both your uncle and father died intestate.

The Succession Act provides clear and unambiguous rules as to the entitlements of next of kin of an intestate.

Your uncle died in 1985 intestate, predeceased by his wife.

A. If the two properties next door to one another (“the properties”) were held by your uncle and father as tenants in common, your uncle’s share in them would have formed part of his own estate and be distributed according to the provisions of the Succession Act 1965.

As your uncle died intestate, without a spouse surviving him, his share of the properties would fall to be distributed between his siblings in equal shares or surviving children of siblings per stirpes (a technical legal principle which means entitlement in accordance with stocks of descent)

Section 69(1) of the Succession Act provides that if a person dies without spouse or issue or parent, all brothers and sisters take equally and the children of a predeceased brother or sister take per stirpes.

B. If the properties had been held as joint tenants, which does not appear to have been the case, it would have passed by survivorship to your father without becoming part of your uncle’s estate. In that instance the property would form part of your father’s estate and be distributed according to the provisions of the Succession Act 1965.

You have discovered that “your uncle’s” part of the properties was sold in 1996.

When property is sold the transferor must be legally entitled to do so. In other words, the transferor must either be the lawful owner of the property, have been given the authority of the owner by way of power of attorney or be permitted to transfer the property by court order. If the owner of the property has died, letters of administration or a grant of probate is required to transfer or sell their property.

When property is transferred, the new owner(s) will register the title either in the Land Registry or in the Registry of Deeds. However not registering their title does not defeat the council’s ownership of the property.

You may be able to take up a copy of the legal documents (“instruments”) used in relation to sale of the property and should contact the Land Registry.

Does your family have any claim now on what you understood was your late father’s property?

Unless you can prove adverse possession, which requires “animus possidendi” (the intention of being in possession) then you or your family do not now appear to have any legal interest in the property. It seems the properties were held as tenants in common, survivorship does not apply, and your uncle’s share formed part of his own estate, unless he transferred it during his own lifetime.

The Property Registration Authority website ( www.pra.ie) can offer you further information on adverse possession as well as how you might access a copy of legal instruments used in the transfer of property.

William O’Connor is a partner and solicitor at P O’Connor & Son solicitors, Swinford, Co Mayo

Photo by Julián Gentilezza on Unsplash