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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 Solicitor, Finance Broker, CTA 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
     
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  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 Solicitor, Finance Broker, CTA 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.
     
  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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