There are a number of well-established principles of adverse possession in the leading authority of Abbatangelo v Whittlesea City Council (Abbatangelo).1 Laming v Jennings (Laming),2 heard in the County Court of Victoria in 2017 and in the Court of Appeal in 2018, confirms and expands the principles relevant to this area of law, particularly in respect of defending a claim for adverse possession. Section 96 of the Land Registration Act 2002 provides that the time of 12 years under Limitation Act 1980, after which the paper owner can evict the squatter, will not be valid to registered land. This case confirms the position that claims against original subdivider companies long deregistered can be validly made, notwithstanding the asset might be registered in ASIC’s name. Claims can be made to Land Victoria under the Transfer of Land Act 1958 (Vic), by seeking a declaration from the County Court of Victoria or Supreme Court of Victoria pursuant to the Limitation of Actions Act 1958 (Vic) or via the Magistrate’s Court of Victoria pursuant to the Fences Act 1968 (Vic). I know, sounds riduclous right? Now the word “possession” has it’s ordinary meaning and the only question is whether the squatter in factual possession has an intention to possess too. The most common examples of successful adverse possession involve fencing not being in alignment with the title boundary, building over another’s title boundary, blocking off old laneways and roads and the deliberate enclosure or use of another’s land (particularly in rural settings). This case highlights that exclusion is not necessary for a successful claim of adverse possession. The plaintiff denied that the defendant had any claims. Some examples of that behaviour are to secure the boundary to exclude others or to add a lock to the gate. The Land Registration Act 2002 set 10 years period of time that the squatter can possess a land and not 12 years as in unregistered land. The same use of the meaning of the “adverse possession” has been incorporated in the Land Registration Act 2002. As Professor Dakray says “such inconsistent use was called adverse possession”. An alternative claim was made by the defendant that he had acquired an easement through the doctrine of the lost modern grant. This situation was presented in a May 28, 2019 Massachusetts real estate case before the Land Court. Adverse possession is a technical area of the law and surveyors should be mindful of the legal principles required to prove a claim and encourage their clients to get expert legal advice early. If the property was sold in the last 15 years, see if the claimant made an offer to buy the land; Check if it is a lane or road on a subdivision, as it might also benefit the lot owner of the subdivision who can object to the claim; Research the history of the fences and see if there has been a break in possession; Check old surveys and aerial photos to work out position of fences over the 15 year period; Consider issuing a notice to fence to bring the matter to a head. The Abbatangelo v Whittlesea City Council case sets out some useful guidance on the principles considered for a claim to be successful. Adverse possession is controversial since in effect it permits squatters to lawfully steal land. Moreover, this case applies equally whether the disputed land is registered or unregistered. Claiming Adverse Possession in Western Australia. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. The case of Edington v Clark (1964) is an example of this necessary qualification. So, any squatter must satisfy all the conditions above before the time started to run in his favour. Assets of deregistered companies vest in the name of the Australian Securities and Investment Commission (ASIC). Some recent cases are really important since they take the law in a new direction. For a comprehensive review of the case, see our case study at www.tlfc.com.au. The general rule of thumb is that to take an adverse possession case all the way to trial is going to cost each party $50,000. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Looking for a flexible role? A key point of the above case was that Mrs Kirkby used the Verge to hold scaffolding when she was redeveloping her own property. As Slade J said in Powell “factual possession signifies on appropriate degree of physical control.” [25] In vary old cases the judges treated the concept of intention to possess as being necessary that the squatter must have an intention to own the land in order to be in possession. As indicated above, that seems to be an obscene amount of money. In Ofulue v Bossert [10] the court of Appeal confirms that all principles of adverse possession of land under the Land Registration Act 1925 have returned to the state where they exist before the Human Rights Act 1998 that came into force in 2000. However, you need to be careful because ASIC may transfer land to a Council at their request which will allow Council to rely on their statutory immunity. Adverse possession commencing after December 31, 1945 shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located. The case concerned a claim by the defendant over part of the plaintiff’s land claiming title by possession for an area of approximately 1400 square metres. Though the possession may be open, if the "message" that it is occurring is not "received" by the public, then the overall purpose of the possession is not realized. Before 1833 “adverse possession bore a highly technical meaning. Bhatha lodged a caveat claiming a freehold estate in some land by adverse possession. Adverse possession essentially allows a trespasser onto a piece of land to gain ownership of that land if the true owner fails to object within a certain period of time and if the trespasser pays faithful property taxes on the subject land. This prevents a squatter to claim for the land just because a specific period of time has passed. The registered proprietor of the land was a deregistered company. The Court found that ASIC held the land not as an asset of ASIC but subject to the same property rights that the company had. The decision in Pinder is correct since it is consistent with principle. There must be an intention to possess, too. Beaulane V Palmer, now cannot stand after Ofulue. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. Clients who rely on predecessors in title need to be careful when making a claim to ensure that they independently verify what the previous owner tells them and to obtain a formal deed of assignment of possessory rights. The intention to posses is known as “animus possessendi”. The only intention that we have to probe is that there was an intention to occupy and use the land as our property. After 1833 the notion of “adverse possession” was reintroduced by the Limitation Act 1939 (section 10) and is exactly the same as in paragraph 8(1) of schedule 1 to the 1980 Act. The final and really important step in relation to the development of the doctrine of adverse possession through the year is that after Rye v united Kingdom it was incorporated a compulsory purchase compensation is because of the Human Rights Act 1998 and of the European Court of Justice. The land was not enclosed in any way and remained unfenced for the whole period claimed. Surveyors need to be wary that just because a person claims to have adverse possession does not mean that they will be able to establish the claim. This means that the rule in Leigh v Jack has been clearly rejected. But just because someone makes a claim, it does not mean that the registered proprietor cannot do anything to defend the claim. revived the “heresy”. “ Now that Ofulue has followed Pye v United Kingdom, the reasoning of the Grand chamber will be binding in future English cases where the registered proprietor disputes whether the squatter has proved the required intention to possess the land.” [17], The fact that the reasoning in that Pye v Unites Kingdom has been incorporated into domestic law it is very important because when the grand Chamber held in 2007 that the LRA 1925 regime did not violate the ECHR, the Land Registry continued to faced the case of Palmer as a binding authority in domestic law. Take a look at some weird laws from around the world! Lord Diplock in ocean Estates ltd v Pinder [29] indicate that the squatter would be able to pay if the paper owner asked it did not means an absence of an intention to possess. However Hoffmann J in Moran case [27] submitted that what is necessary is “not an intention to possess”. Do you have a 2:1 degree or higher? Numerous cases have since recognized that title by adverse possession may be acquired though the property was occupied by mistake. [19] Another important issue in relation to the development od adverse possession through the years is that remains a long standing confusing as to what constitutes “dispossession and the place, if any, of “adverse possession” in the modern law. To limit the doctrine of adverse possession to the latter possession places a premium on intentional wrongdoing contrary to fundamental justice and policy. Furthermore, in many cases squatters show that if the paper owner asked from them to pay for their occupation in the land they would have done it. Requirements for a claim In order to make a successful claim for adverse possession in both registered land and unregistered land, the squatter must establish factual possession and that they had the intention to possess. Your property is likely your most valuable asset. Adverse possession is a means by which title to land can be acquired by taking possession for a period of time. Under Washington State case law and statutes, an adverse possessor can usually only claim a right to the property after 10 years. He reached to the conclusion that the meaning of adverse possession as provided in LRA 1925 needed to be interpreted along these discredited lines to prevent the registered owner’s entitlements under Article 1 to be violated. The problem could be avoided saying that there are two elements which are necessary for legal possession. For a successful adverse possession claim, and to be registered as the owner of the land, one of the elements which has to be proven, is that you have been in physical possession of the land. In the past, estate owners had to be vigilant as regards the land that they owned but did not use it for themselves. The Irish Courts in assessing the factual possession element of adverse possession may draw on the persuasive authority of this UK decision and could potentially result in more cases in Ireland making successful claims for adverse possession, provided the person making the application is still able to prove they have acted in a way typical of an owner of that land. Every adverse possession case is different and it is case law that has developed the criteria as to what can constitute a valid claim. The owner of the disputed land undertook surveys in 1995, 1997 and 2008 for the purpose of marking boundary posts, placing survey pegs to consider the subdivision of land and to determine what land to sell and to retain. Registered Data Controller No: Z1821391. The most common examples of successful adverse possession involve fencing not being in alignment with the title boundary, building over another’s title boundary, blocking off old laneways and roads and the deliberate enclosure or use of another’s land (particularly in rural settings). One of the best ways to prove you have physical possession of the land is to fence off or otherwise enclose the land. Adverse possession is linked to the principle of limitation of action (see s.15 Limitation Act 1980)but goes beyond this as the previous owners rights may be extinguished. In this case Mr Justice Slade said: “Factual possession signifies an appropriate degree of physical control”. It is important that you are sure that 15 years possession has not accrued otherwise you could be committing a trespass and subject to a claim for damages. By submitting an application for adverse possession where none of the conditions in paragraph 5 applies, the applicant effectively risks being evicted from the land by the paper owner. If you intend to file a suit for adverse possession, it's best to have an experienced attorney on your side. Apart from the attack by the plaintiff that there was not sufficient possession of the land, the plaintiff was successful in breaking the 15 year period due to: It is important to note that a mere letter objecting to the possession will not be enough to stop time running. Celebrating over 45 years of premium legal service. Over the years, a few fruit trees were also planted on the disputed land. The adverse possessor cannot share possession with others. This is because it would be unfair a squatter to succeed to his claim without the paper owner has the opportunity to find out what is happening on his land. Owners can sometimes use the period of possession from their predecessors in title so just because a person has only owned their land for a short period of time may not prevent them from making a claim. This is not an example of the work produced by our Law Essay Writing Service. Adverse possession is a legal doctrine under which a person (the "adverse possessor") trespassing on real property owned by someone else may acquire valid title to it … process by which someone who is not the legal owner of a piece of land can have land transferred to them following possession and exclusive occupation of it for a specified period of time Moreover “from Pye v UK, it would seem that the present limitation regime in compulsory purchase cases is more draconian even than the then regime for adverse possession.” [32], In concluding “it might be argued that the law has not significantly changed and there is merely a recognition that the term adverse possession is a term of art and does not hold the meaning which on sight, one might expect.” [33]. In many adverse possession cases, the plaintiffs’ claim to property arises from a long-held, yet mistaken, belief that they own the land at issue. Before the enrolment of the Real Property Limitation Acts 1833 and 1874, the rights of the papers owner were not taken away save by a “disseisin” and use of the land by the squatter of a kind that was clearly inconsistent with the paper title. Ideally, you want an attorney who has experience representing adverse possessors in trespass to try title lawsuits. After an 11 day hearing, the plaintiff successfully defended the adverse possession claim and the Court ordered an easement for recreation. The decision in the case of Buckinghamshire cc v Moran [13] has been approved by the House of Lords in Pye v Graham. For, adverse possession requires that the true owner be given the opportunity to effectively deal with and terminate the same on the part of the claimant. Enclosure is the best possible evidence of an intention. In addition to this the decision of the court of Appeal in the case of R v Secretary of state for the Environment, Ex p Davies [30] was wrong. If a client has large parcels of land and it is surveyed, it may be enough to restart the clock for an adverse possession claim if the surveyor surveys all the land and marks boundaries. The typical case would be a fence enclosing a portion of property belonging to another. From 1833 the only question in relation to a squatter was whether had been in possession in the ordinary meaning of the word. Lesson #3: All Necessary Parties Must Be Part of an Adverse Possession Case. Depending on the circumstances, it may be worth simply continuing to occupy the land rather than alerting the paper owner to the occupation and potentially upsetting the status quo. Free resources to assist you with your legal studies! However, the rationale for allowing acquisition of title through adverse possession … The orders for the easement are subject to appeal to be heard late 2018. You can view samples of our professional work here. Land Law Before the expiry of this period the paper owner can evict the squatter. Today it merely means possession inconsistent with and in denial of the title of the true owner, and not, e.g. Phillip acted for the successful party in the leading Victorian Supreme Court of Victoria authority in the area of adverse possession, Abbatangelo v Whittlesea Council. Some acts alone may not be sufficient to establish possession but when combined with other acts may be enough to make a claim; and, They had an intention to possess the land. Level 2, 333 Queen Street, Melbourne Victoria 3000, Adverse Possession – How to Defend a Claim, article featured in the March 2018 issue of, Tisher Liner FC Law (TLFC) Privacy Policy, That they have had actual possession of the land which is exclusive to the paper title owner and the world at large. 18th Jul 2019 Surveyors should check if land is noted as a lane or road and if there are title discrepancies, note these to clients for further investigation. (E.g., Sorensen v. Costa, supra, 32 Cal. Under this new Act the squatter must claim for the title to the registered estate by applying to the Land Register in order to become the owner of the land. Adverse use is a requirement for one of these claims, and this presumption helps a claimant make this required showing. Even though, the High Court in Beaulane Properties ltd v Palmer [2005] make a try to resurrect the rule in Leigh v Jack. If a road, Council will also need to confirm by letter that the land is not a road for the purpose of the Road Management Act 2004 (Vic) or on the Council’s public register of roads (if Torrens Land). … It is! In Ofulue v Bossert the court of Appeal confirms that all principles of adverse possession of land under the Land Registration Act 1925 have returned to the state where they exist before the Human Rights Act 1998 that came into force in 2000. Mere personal convenience will not constitute a sufficient intention. Liability Limited by a Scheme under Professional Standards Legislation. Adverse possession is a legal principle enabling the occupier of a piece of land to obtain ownership. Thirdly, there must be a factual possession as in Powell v Mcfarlane [3] . Here it was held that possession can be adverse when the acts done were inconsistent with the purposes for which the paper were inconsistent with the purposes for which the paper owner thinking to use the land. In the same way Slade J in Powell mentioned to the necessary intention as being an “intention to own”. Always obtain legal advice early and ensure a survey is undertaken to establish the actual measurements to see what is in contention. The more difficult case would be a line of “boundary trees" planted by an adverse possessor. But before you can work out how to defend a claim, we need to understand how a claim is made. There was evidence that the alleged possessor mowed the disputed land and undertook a variety of activities on the land including ball games, storing wood on the land, undertaking burning of green waste and occasional picnics. Surveyors can assist clients by checking whether previous surveys exist and checking measurements and positions of fences, surveying all parts of the land and being careful of making statements in a surveyor’s report which are not verified by the surveyor with first hand knowledge. possession under a licence from him or under some contract or trust” [6] . Company Registration No: 4964706. The case presents a good overview of this powerful, yet sometimes-forgotten legal doctrine. Phillip is a property and business lawyer with particular expertise in property development, adverse possession, compulsory acquisition and title issues such as easements, roads and restrictive covenants. It will always be difficult to make a claim if there is no attempt to exclude people off the land (usually done by enclosure or signage). [7], After 1925 the law has been changed. Apart from a mow line, there was no difference between the disputed land and the balance of the plaintiff’s land. Adverse possession, sometimes colloquially described as " squatter's rights ", is a legal principle under which a person who does not have legal title to a piece of property — usually land (real property) — acquires legal ownership based on continuous possession or occupation of the property without the permission of its legal owner. The first requirements which must be met is that the paper owner must stop to possess the land and after that the squatter to move onto the land and starts to behave in the same way as if it was his property. Their possession has continued for at least 15 years without interruption. In relation to registered land, according to 75(1) of the Land Registration Act 1925 after the expiry of the limitation period the title is not extinguished but the registered owner hold the land thereafter in trust for the squatter. so far as is reasonably practicable and so far as the process of laws will allow” [5] .Finally, according to Section 29 and 30 of the Limitation Act 1980 if the squatter receive any written acknowledgement of the paper owner’s title the time will stop running in favour of the squatter. In the case of Buckinghamshire cc v Moran [1990] was highlighted the requirements which must be met to establish a successful claim on adverse possession. Where the area claimed includes a road, reserve or easement, evidence of non-use for 30 years or more is required. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! [18]. When someone possessed his land and he did nothing about it, then he loses the title of the land. An adverse possessor’s use must be “exclusive" and “continuous." You should not treat any information in this essay as being authoritative. The doctrine of adverse possession has a particular fascination for me, but interest in this topic goes far beyond the surveying profession. “Possession need not be inconsistent with the future intended use of the land by the paper owner to be adverse” [14] . As Chief Justice Cockburn noted in Seddon v Smith (1877) one very strong evidence of factual possession is the enclosure by fencing. Anyone who can claim adverse possession under the old regime will want to do so, as there are fewer obstacles to a successful claim. Elements of Adverse Possession. It is almost impossible to establish adverse possession without some form of enclosure; and. The concept of “non-adverse possession” is deemed to be the root of the problem. Adverse possession is a complex area of property law, and successful cases of adverse possession are rare. This was established in the case of Buckinghamshire CC v Moran and was affirmed in the case of Pye v Graham. Fencing and enclosing the land and payment of rates suggests an intention. And the trespasser doesn’t need to intend to take the land by adverse possession. Attorneys, employees of government agencies and the general public all become enthusiastic when squatters’ rights or trespass are mentioned. VAT Registration No: 842417633. The Court found a claim could therefore be made against a deregistered company. There are strict time limits imposed on registered proprietors to lodge a caveat to prevent an adverse possession claim (30 days) and proceedings need to be issued within a further 30 days. Furthermore, there must be open possession. As Slade J says that is still the law. The legal term for this is "adverse possession." This qualification is provided in Section 32 of the Limitation Act 1980 which says that possession must not be deliberately concealed. Reference this. If the possession, even though not concealed, is not known, either actually or constructively, … A claimant must prove: Adverse possession will, as a general rule, extinguish the title of the true owner to everything above and below the surface but will be subject to existing easements unless they can be removed as part of the application. In some cases, you have one shot to make a claim successfully. The alleged possessor making an offer to purchase the plaintiff’s land which constituted an acknowledgement of title for the purpose of section 24 and 25 of the. [31] It is very important to understand for now and for the future too what the use of the word “adverse” in the context of section 15 of the Limitation Act 1980 was intended to convey. These requirements have been confirmed in the case of JA Pye (Oxford) Ltd. and others v Graham and Another [2] which is a recent case and many fundamental principles of adverse possession are discussed in this case. But, what I thought to suggest is that there must be some difference in spend which results in greater results. A successful adverse possession claim requires the occupation to meet all four of the following common elements: It must be hostile, or occupation of the land in a manner that is adverse … (2) For the purpose of this section, property is deemed possessed in any of the following cases: (a) When it has been usually cultivated or improved. According to Section 15(1) of the Limitation Act 1980 this is not necessary. Sometimes it happens through an honest mistake—for example, a neighbor may have relied upon a faulty property description in a deed when building a fence … Mr Justice Slade in Powell v McFarlane [4] gave the definition of intention to possess which is: “The intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title. The company had no Crown immunity and so ASIC did not have the benefit of Crown immunity in respect to the property. Secondly, the possession of the land must occur without the consent of the paper owner. The significant point for present purposes is not that we have to show that there was a deliberate intention to exclude the paper owner. After doing so, the party opposing such a claim has the burden to overcome this presumption, and show that such use was allowed. Disclaimer: This work has been submitted by a law student. The case of Techbild Ltd v Chamberlain (1969) illustrates this. The mere fact that adverse possession was based on criminal trespass did not preclude a successful claim to adverse possession under Sch.6. [20] According to Denman CJ in Nepean v Doe D. Knight [21] soon after the passing of the 1833 Act it was held that “the second and third sections of the Act… have done away with the doctrine of non-adverse possession, and… the question is whether twenty years have elapsed since the right accrued whatever the nature of the possession.” [22] This statement was made also in Culley v Doe D. Taylerson [23] so what constitutes “possession” in the ordinary sense of the word? The Limitation Act 1980 put a limit of 12 years in relation to unregistered land. Slade J noted that: “In my judgement the references to adverse possession in the 1939 and 1980 Acts did not reintroduced by a side wind after over 100 years the old notions of adverse possession in force before 1833″. How do claims start? For example in Littledale v Liverpool college [26] Lindley MR mentioned to the claimant relying on “acts of ownership”. Slate L said in Powell’s case: “in the absence od evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land as being the person with the prime facie right to possession.” [24] Slad J adopted this definition from Roman law and by all judges and writers from past. The doctrine of adverse possession provides that sometimes a trespasser can become a rightful owner. Claims usually start when a party wants to replace a fence or undertake a development, subdivision or renovation and obtains a survey. Under Section is of the Limitation Act 1980, when the period of limitation starts to runs in favour of a person, then he is in the possession of the land, he being in “adverse possession”. Prevents a squatter to claim for being the title of the “ possession! Really important since they take the land Court and payment of rates suggests an to... 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