Adverse possession is a complex area of property law, and successful cases of adverse possession are rare. One of the best ways to prove you have physical possession of the land is to fence off or otherwise enclose the land. As Slade J says that is still the law. In this case Mr Justice Slade said: “Factual possession signifies an appropriate degree of physical control”. It is almost impossible to establish adverse possession without some form of enclosure; and. 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. Claimants should get clear evidence of possession from a variety of sources and obtain aerial photographs if needed. The problem could be avoided saying that there are two elements which are necessary for legal possession. Even though, the High Court in Beaulane Properties ltd v Palmer [2005] make a try to resurrect the rule in Leigh v Jack. 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. This new Act Set a new regime for the registration of an adverse possessor of an estate in land. 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 … The same use of the meaning of the “adverse possession” has been incorporated in the Land Registration Act 2002. 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. 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″. 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. When someone possessed his land and he did nothing about it, then he loses the title of the land. Moreover, this case applies equally whether the disputed land is registered or unregistered. Some recent cases are really important since they take the law in a new direction. The only intention that we have to probe is that there was an intention to occupy and use the land as our property. Adverse possession is a legal principle enabling the occupier of a piece of land to obtain ownership. 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. 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. 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. The significant point for present purposes is not that we have to show that there was a deliberate intention to exclude the paper owner. . However, the rationale for allowing acquisition of title through adverse possession … This concept was noted by the common law end equity into the limitation statute of James. The legal term for this is "adverse possession." Fortunately, Mr Best was successful in appealing the decision and was soon able to claim adverse possession UK. In Western Australia, where a person occupies land owned by another individual for a period of more than 12 years against the wish of the registered proprietor on the Certificate of Title, the ‘adverse’ occupier is eligible to make an application to the Commissioner of Titles that the land they are occupying be transferred to them. The mere fact that adverse possession was based on criminal trespass did not preclude a successful claim to adverse possession under Sch.6. Reference this. 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. Claimants without 15 years possession in their own right should speak to neighbours, search survey records and speak to previous owners to establish possession. Lesson #3: All Necessary Parties Must Be Part of an Adverse Possession Case. But just because someone makes a claim, it does not mean that the registered proprietor cannot do anything to defend the claim. Claiming Adverse Possession in Western Australia. Thirdly, there must be a factual possession as in Powell v Mcfarlane [3] . The plaintiff denied that the defendant had any claims. Apart from a mow line, there was no difference between the disputed land and the balance of the plaintiff’s land. This old regime was challenged in the case of Pye v UK, which arose from a claim by a Mr and Mrs Graham for adverse possession of land owned by a developer, Pye. 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”. 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. An alternative claim was made by the defendant that he had acquired an easement through the doctrine of the lost modern grant. Elements of Adverse Possession. Disclaimer: This work has been submitted by a law student. This prevents a squatter to claim for the land just because a specific period of time has passed. 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 … This qualification is provided in Section 32 of the Limitation Act 1980 which says that possession must not be deliberately concealed. 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 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. (E.g., Sorensen v. Costa, supra, 32 Cal. Before the expiry of this period the paper owner can evict the squatter. 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. Over the years, a few fruit trees were also planted on the disputed land. 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. Every adverse possession case is different and it is case law that has developed the criteria as to what can constitute a valid claim. Firstly, “ factual possession” and secondly “intention to possess”. The case of Techbild Ltd v Chamberlain (1969) illustrates this. Beaulane V Palmer, now cannot stand after Ofulue. The case of Edington v Clark (1964) is an example of this necessary qualification. Some examples of that behaviour are to secure the boundary to exclude others or to add a lock to the gate. 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. There must be an intention to possess, too. Numerous cases have since recognized that title by adverse possession may be acquired though the property was occupied by mistake. For a comprehensive review of the case, see our case study at www.tlfc.com.au. The company had no Crown immunity and so ASIC did not have the benefit of Crown immunity in respect to the property. Today, with the introduction of the Land Registration Act 2002, vigilance is not necessary since the estate owner will be informed by the Land Registry when a squatter applies to be registered as title owner. “Possession need not be inconsistent with the future intended use of the land by the paper owner to be adverse” [14] . Given the timeframe, clients need to obtain advice quickly and be sure of their position before embarking on costly litigation. [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. To limit the doctrine of adverse possession to the latter possession places a premium on intentional wrongdoing contrary to fundamental justice and policy. Claims usually start when a party wants to replace a fence or undertake a development, subdivision or renovation and obtains a survey. 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. 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. 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. Bhatha lodged a caveat claiming a freehold estate in some land by adverse possession. In the same way Slade J in Powell mentioned to the necessary intention as being an “intention to own”. [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. 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). Fencing and enclosing the land and payment of rates suggests an intention. An adverse possessor’s use must be “exclusive" and “continuous." 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. Where the area claimed includes a road, reserve or easement, evidence of non-use for 30 years or more is required. This means that the rule in Leigh v Jack has been clearly rejected. For example in Littledale v Liverpool college [26] Lindley MR mentioned to the claimant relying on “acts of ownership”. The doctrine of adverse possession provides that sometimes a trespasser can become a rightful owner. In that way the situations for any possible registration of a manor were increased, because many manors pass by being included in a settlement or by assent on the death of the lord. The land was not enclosed in any way and remained unfenced for the whole period claimed. The intention to posses is known as “animus possessendi”. Company Registration No: 4964706. revived the “heresy”. The adverse possessor cannot share possession with others. 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. The Abbatangelo v Whittlesea City Council case sets out some useful guidance on the principles considered for a claim to be successful. … Assets of deregistered companies vest in the name of the Australian Securities and Investment Commission (ASIC). This presumption is highly important for a successful claim. 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. Secondly, the possession of the land must occur without the consent of the paper owner. 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. Smart v London Borough of Lambeth This case involved a handful of properties in Clapham, which were acquired by Lambeth London Borough Council in … The … 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. possession under a licence from him or under some contract or trust” [6] . In the past, estate owners had to be vigilant as regards the land that they owned but did not use it for themselves. 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. The case of J A Rye (Oxford) Ltd v Graham [9] applies to all cases of adverse possession. I know, sounds riduclous right? Nevertheless, the case reminds us of the principles surrounding Adverse Possession, which were clarified a year or so ago in Zarb v Parry. 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! The concept of “non-adverse possession” is deemed to be the root of the problem. 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. 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. 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