Adverse Possession

Discussion in 'Legal Issues' started by money, 30th Jul, 2019.

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  1. money

    money Well-Known Member

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    Has anyone here done an adverse possession of a vacant property they have found? I've only come across 2 articles of it being successful recently in Oz. Basically you have to "occupy" the property but it seems you don't actually have to live there, it can be rented out. If you took over a vacant property, since it's not in your name yet would you have to pay land tax on the property? What happens if the owner had land tax payable on it but didn't pay it for many years for example?

    I'm wondering why there haven't been more articles of people successfully doing this. Is it because it's nearly impossible to do? If you need to occupy the property for 12-15 years, would it be possible/likely for the government to change the laws to make adverse possession illegal in that time?
     
  2. Scott No Mates

    Scott No Mates Well-Known Member

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  3. thatbum

    thatbum Well-Known Member

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    Pretty much.
     
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  4. Scott No Mates

    Scott No Mates Well-Known Member

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  5. Stoffo

    Stoffo Well-Known Member

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    From memory this can only be possible for private property
    Council/goverment, waterboard and roads-traffic lands can't be, sure you could use an area, but won't get adverse possession
     
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  6. qak

    qak Well-Known Member

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    If you look at the land sizes, this is pure greed & opportunism by Hardy. The land he has claimed is off the side of his property, and his block was already much bigger than the neighbour who probably would have more utility from it. I wonder if he claimed the rest of the dunny lane as well?
     
  7. Firefly99

    Firefly99 Well-Known Member

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    I think this law is stupid. And totally unfair. I think also that paying rates on land should mean that you are occupying it or have intent to and prevent someone from stealing it. Imagine renting out your house but the tenants don’t use the yard much and this could mean someone else have the legal right to take the land. Absurd.
     
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  8. Mark F

    Mark F Well-Known Member

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    I certainly started an adverse possession when I removed the back fence at my first property in 1970 and put in a gate to access the rest of the "dunny" lane. The two houses that were further up the lane than mine had already closed off access. Next door had built a shed over their section of the lane so they never had the ability to access their property from the lane. Nobody questioned it over the remaining five years I owned the property. I expect that happened to many of the non-vehicular access dunny lanes.

    I admit that I would have complained if any others had done so as I used the lane to get materials into the back yard.
     
  9. wylie

    wylie Moderator Staff Member

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    We had a situation a couple of years back where probably back in the 60s a back corner of an IP my parents bought about 30 years ago was truncated, clearly to allow landlocked neighbour to drive into a garage at the back of their property. They claimed if I took back my corner, they couldn't park there any more (they'd clearly not parked there for many years and it was now a gazebo).

    Long and very stressful story short, we refunded on the correct boundary. They were selling but did threaten to try for adverse possession. I copped abusive calls from both husband and wife. It was very unpleasant and stressful.

    We allowed them time to go back to their lawyer (as they said the real estate agent changed the plan to show the truncation). After two weeks, we fenced as per the plan and they sold. Wife was hoping to buy out the husband so thankfully that didn't happen as she had threatened to try to get the land.

    A lawyer told us it would cost her a lot to try to get it, and cost us very little to defend here in Queensland. It was a couple of square metres in the corner, hardly worth spending money on. But they were separating, so they probably were bitter about things in general and I was an easy target for their bile.
     
  10. bmc

    bmc Well-Known Member

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    Registrar General guidelines state,

    No claim for adverse possession against the Crown can be made in cases of land:
    • set out as road under any Act
    • left between Crown Grants for use as road or driftway
    • dedicated under any Act for a public purpose
    • reserved in any Crown Grant, or
    • comprised in an uncompleted conditional Crown purchase or other subsisting tenure.
    and in the words of the famous solicitor, Dennis Denuto
    “IT’S THE VIBE OF IT. IT’S THE CONSTITUTION. IT’S MABO. IT’S JUSTICE. IT’S LAW. IT’S THE VIBE AND AH, NO THAT’S IT. IT’S THE VIBE. I REST MY CASE.”
     
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  11. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Adverse possession is very complicated and a slow process as it is founded on common law. You cant "take" the land. You must possess the land continually. And for a prolonged period often now set by statutory law or following a statutory process. Many councils had "given permission" to neighbouring lots to use these alleys and this can prevent claims for adverse possession. If given permission for use then you cant generally also claim adverse possession as the other party has not surrendured their right by giving permission. It goes back to very old english law where a person may own land but there was no such thing as title deeds or a governnment registration of ownership. Possession was the rule of law.

    Contrary to what most think AP actual gives owners security of title by making it difficult to claim AP. AP encourages economic USE of land. Risks expand when land is not used for a prolonged time.

    Adverse possession also occurs with objects such as art etc. Most museums who accept loaned items go to great lengths to display notices about loaned items to avoid being drawn into long & costly legal disputes with families or even third parties (eg Holocaust survivors who recognise a family asset).
     
  12. larrylarry

    larrylarry Well-Known Member

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  13. Scott No Mates

    Scott No Mates Well-Known Member

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    This may be a case where the purchaser of the affected lot may have benefitted from having had title insurance as although the land which they 'lost' due to the adverse possession claim was shown on their title, the claim and judgement pre-dates prior to the current owner but still shown on their CT.
     
  14. Mark F

    Mark F Well-Known Member

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    Having read through the judgement it seems Mr Sidoti didn't get a survey done when he bought the property. This wouldn't have changed the outcome but he would have been alerted to the problem before purchase.

    Anybody know what happened with the "green" bit of the lane? (see the diagram Neighbours' row over 'two very Australian phenomena' ends up in NSW Supreme Court . I suspect he also gained that bit as well.
     
  15. qak

    qak Well-Known Member

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    Yes I wondered about that bit too. And the rest of the lane!

    Edit - they don't really refer to the green land much, but it seems that the Theodorou tenants were using it as a rubbish dump ... sounds like that might save the green land being snatched as well.
     
    Last edited: 14th Aug, 2020
  16. Mark F

    Mark F Well-Known Member

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    The same arguments were made about the green bit in the case, so I expect the owners of the green bit, who were parties to the case, were waiting for a decision and will go along with the verdict.

    I suspect the other bits were "in use" by their owners.
     
  17. larrylarry

    larrylarry Well-Known Member

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    The case ultimately dealt with yellow land.