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Adverse posession

Discussion in 'Legal Issues' started by Owlet, 17th Nov, 2015.

  1. Owlet

    Owlet Well-Known Member

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    Has anyone had any experiences with adverse possession? Have you instigated proceedings to claim someone else's land or been on the receiving end of a claim?

    Obviously mediation and fairness is the ideal and avoiding a costly legal battle. However, in the case of a hostile party what experiences if any have you had?

    A friend of ours has a property where the neighbour had boarded up access (placed iron sheets on a wire fence and gate situated 1.5m within our friends property) to land that belongs to our friend. Thus the neighbour is claiming the land on their side is theirs - assumed adverse possession (stealing). Our friend has unblocked the gate and the neighbour is irate. The friend is seeking legal advice. I thought with many investors on here and a property experience that someone may have been through this.
     
  2. Perthguy

    Perthguy Well-Known Member

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    I have looked into it in Western Australia. Adverse possession is a legal process. If the neighbour hasn't lodged an Adverse Possession claim, they haven't assumed adverse possession, they are just trespassing.

    This sounds like it might be more about access than possession.

    Adverse possession

    Adverse possession is a legal principle that enables the occupier of a piece of land to obtain ownership if uninterrupted and exclusive possession of the land for at least 15 years can be proven.

    Adverse possession claims are complex to prepare and cannot be made against the Crown, council-owned land and land owned by other authorities or bodies.​

    If the neighbour has occupied the land uninterrupted and exclusively for at least 15 years, they might have a right to claim Adverse possession, but until that is granted, they are simply trespassing.
     
  3. Scott No Mates

    Scott No Mates Well-Known Member

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    Only valid for old system titled land.
     
  4. Terry_w

    Terry_w Structuring Broker and a Structuring Lawyer Business Member

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    I don't think this is the case.

    Adverse possession is very rare. It is covered at law school and in the land law books, but rarely seen in real life.

    The relevant legislation is state legislation and in NSW it is the Limitations Act - s65 I think. Relevant period in NSW is 12 years. i.e. if the neighbour is in possession for 12 years or more, and provided other requirements are met, then the title to the owner is extinguished.
     
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  5. Perthguy

    Perthguy Well-Known Member

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    It's a very complex area of law. There is an outline of some of the requirements here:

    Adverse Possession - Lawyers Conveyancing - Conveyancers Melbourne Victoria

    [Adverse Possession] is an old doctrine that says, basically, that where a trespasser remains in possession of land for a period of time (usually 15 years and 1 day) then that person may have acquired ownership of the land.​

    This confirms my thought that the neighbour is trespassing.

    Out of interest, here are the timeframes for each state:
    • Victoria, 15 years
    • South Australia, 15 years
    • New South Wales, 12 years
    • Western Australia, 12 years
    • Tasmania, 12 years
    • Queensland, 12 years
    Another aspect is that adverse possession means not mere occupation but also actual physical possession in an open and peaceful manner, without consent of the original owner. I think if the owner is challenging the neighbour's occupation of the land, an adverse possession claim would not be valid.

    @Scott No Mates, the doctrine of adverse possession applies to Torrens Titled land as well. Each state has their own legislation.

    Victoria and Western Australia
    The Torrens statutes in Victoria and Western Australia expressly permit a claim for adverse possession as an exception to indefeasibility of title.

    New South Wales
    In 1979 the Torrens title legislation was amended and pt 6A was introduced into the Real Property Act 1900 (NSW) to allow claims for adverse possession against registered proprietors.

    Queensland
    In 1952 the legislation was changed so that (consistent with such states as Victoria and Western Australia) an adverse possessor acquires an interest that constitutes an exception to the indefeasibility of the registered proprietor.

    Tasmania
    In Tasmania, the doctrine of adverse possession applies to Torrens title land and a registered proprietor’s indefeasible title is statutorily ‘subject to section 117 [of the Land Titles Act 1980 (Tas)], so far as regards rights acquired, or in the course of being acquired, under a statute of limitations’. Section 117 (which basically provided that the general law of adverse possession applied to Torrens title land) was repealed and replaced by pt IXB, which, inter alia, deals with the question of ‘possessory title’ claims.

    South Australia
    South Australia reintroduced adverse possession into its Torrens statute in 1945, but has taken unusual steps to control adverse possession within its title by registration system.​

    There is a good write up here. http://www.law.unimelb.edu.au/files/dmfile/35_3_3.pdf
     
  6. Scott No Mates

    Scott No Mates Well-Known Member

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    I stand corrected, kinda sorta, however the conditions are more stringent for TT land (possessory title).

    Merely being in possession of the land does not entitle one to claim. The claimants must also provide proof that they have been paying the rates on the land (a bit hard if the portion of the land is not a separate lot with its own title).

    S45 of the Real Property Act 1900 (4) restricts the period of claims to prior to the current owner.
     
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  7. Terry_w

    Terry_w Structuring Broker and a Structuring Lawyer Business Member

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    The possession has has to be 'peaceful'. You could not take a piece of land by force and get title.
     
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  8. Owlet

    Owlet Well-Known Member

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    Thank you all for the feedback. It will be interesting to see how this unfolds.
     
  9. Foxy Moron

    Foxy Moron Well-Known Member

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    I was involved in acquiring a section of land under adverse possession in Qld about 12 years ago. No trifling matter – takes a lot of time and money, and you definitely still need luck on your side for your claim to get up, even if you are morally justified.

    In our case we purchased a 2000m commercial block (two titles) but it basically surrounded a sliver of land about the size of a cricket pitch that we had to apply to acquire under this method. It should have been set up as an easement some 100+ years ago, but actually had its own freehold title. It had also slipped under the radar of the local council for the past 70 years and so it remained as a no-mans-land but freehold lot nonetheless. (Goes way back to the horse and cart days when cottages had stables at the back - bit like a shared driveway in modern times). So due to some clerical screw-up way back when both house blocks got sold off but the driveway just got forgotten about. We had to make an elaborate application to the Lands Department with stat decs from a lot of the old timers round the district, plus hire a genealogist to track down that the original owner was buried up in Gympie in 1930 and had no children. Advertise in local paper and government gazette and hope no claimant came forward blah blah.

    In the end it took $12k in legals and held up our DA for 10 months, but we just had to suck it up at the end of the day. Much different to your case though.

    Now I’m no lawyer but I think in your case the angry neighbour has got buckley’s of winning a claim – he is merely trespassing. I reckon Perthguy has got it right.
     
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  10. Wall Street

    Wall Street Well-Known Member

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    Claiming adverse possession is a bloody hard matter (proving the duration, lack of interruption, exclusion to others), and the courts are fairly unwilling to grant it without strong evidence.

    I'm assuming that the blocked up gate and fence were existing ones? If that's the case, the neighbour will need to show that he has prevented anyone from entering that gate for the last 15 years. If your friend continued to use the land at any point during that time, there is no claim.
     
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  11. Owlet

    Owlet Well-Known Member

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    Update

    Notice to fence on the title boundary was issued to the neighbour
    Neighbour's solicitor responded stating their client was claiming adverse possession
    Friends solicitor inspected the property and said the land in question is a spoon drain and adverse possession doesn't apply.
    No response from the neighbour's solicitor
    Our friends wish to install a fence on the boundary and landscape their back yard. Solictior has advised that they need to go to the magistrate court and follow through with the fencing notice. Due to using the spoon drain to refute adverse possession (no longer actually used and all other properties in the street have their fences and gardens over this) solicitor says an engineers report is likely to me needed for the fence.
    Should our friends spend 6k+ in legal fees to get the fence put on the boundary? If they lose - they will need to pay the neighbour's costs. (The property is an investment)

    If it was your property would you go ahead? (Alternative wait until owner sells/dies?)
     
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  12. Joynz

    Joynz Well-Known Member

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    I would pay the money without a second thought.

    It will only get harder to fix this if time elapses.

    I am a bit perplexed, however, how the spoon drain is relevant?

    At any rate, it is important that your friend use a lawyer who has expertise in this area, not just any lawyer, even if it costs more.
     
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  13. Owlet

    Owlet Well-Known Member

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    There is a fence of sorts (wire chicken mesh on poles with iron that the back neighbor has attached to try and claim the land) with a gate 1.5m within the back yard boundary on my friend's block. The back neighbor also has a fence but his is approx 10m into his yard. Going back many years this drain (gravel on the ground) was used and water flowed along the ground until it meets the very large open storm water drain two three houses away. Over time as houses have been upgraded and fences replaced - fences, a part from two homes, are on the boundary and the spoon drains no longer needed - covered by garden beds. (we used to live 3 houses away).
    The solicitor is stating a fence has never been erected on the title boundary because it was/is a waterway - and therefore impractical for both sides to do so and this voids any claim. There is no easement or council restrictions on building a fence on the boundary, just the neighbor's resistance. (The back neighbor keeps blocking up the access gate with iron).There is a newish build two doors down that has a newly built fence on the boundary.
    The back neighbor has threatened my friend's tenants - abused and bullied them trying to get his contact details. The neighbor also rang and The back neighbor has also verbally claimed adverse possession with the adjacent neighbor.
     
  14. Joynz

    Joynz Well-Known Member

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    As your friend's solicitor is relying on the spoon drain, it sounds like the neighbour-erected chicken wire fence may have been in place for over 15 years?

    (Because if the fence has been erected for less than 15 years in Victoria, then there couldn't be a claim.)

    Not sure how the back neighbour issue is related (sounds like they have got a fence 10 metres inside your friend's boundary?)
     
  15. Perthguy

    Perthguy Well-Known Member

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    I would not spend any more money on this. I would order a fencing contractor to install the fence on the boundary. I would be there at the time and if the person making the adverse possession claim kicked up a stink I would call the police. I have been involved in this type of dispute before and I did have to call the police on a neighbour.

    If someone is harassing the tenants, call the police. That kind of behaviour is not acceptable.
     
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  16. Joynz

    Joynz Well-Known Member

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    Possibly unwise just to go ahead and fence if the ownership is in dispute due to an adverse possession claim.

    I would not proceed without advice from a lawyer with experience in this area, and quickly!
     
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  17. Perthguy

    Perthguy Well-Known Member

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    I did not realise a claim had been lodged. If paperwork has been filed then don't proceed until the issue has been resolved.

    My understanding was that no papers have been filed. The neighbour is saying they have adverse possession which they think means they are claiming adverse possession. They don't appear to understand that making an adverse possession claim involves lodging an application with the relevant government agency. I could be wrong but that is the impression that I get
     
  18. Owlet

    Owlet Well-Known Member

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    The neighbour has not filed an adverse possession claim - he had his solicitor respond to a fencing notice claiming adverse possession.

    Under the fences act in Victoria it is illegal to construct a fence on the boundary without the adjoining owners permission - even if you are paying for it. This law came into effect two years ago.

    My friend could erect a fence 100mm inside the boundary. If he damages or pulls it down - the police will say its a civil dispute.

    Anyways he has thought through some of the suggestions mentioned. He is just pondering whether to spend the $, get a final judgement and move forward.
     
  19. Owlet

    Owlet Well-Known Member

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    Yes - there for more than 15 years but there is a gate in the fence - which shows access. The back neighbour is not permitted to block this off. My friend has accessed and used the disputed area for the last 3 years - and in the absence of an official application for adverse possession the neighbour hasn't been the sole occupant and is no longer the sole occupant.
     
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  20. Perthguy

    Perthguy Well-Known Member

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    A solicitor should know that 'claiming adverse possession' isn't a thing. The neighbour should put up or shut up - lodge the paperwork and see if it works or stop whinging.

    That is harsh!