Selling a property acquired through adverse possession

This is a hypothetical for a fictional story scenario. I would appreciate advice from all you lovely knowledgeable property people. Thanks in advance!

If a property was acquired through adverse possession (ala the recent Sydney man) is the new title “freehold”?
And, if this property was then sold by the person who claimed ownership via adverse possession, would it be possible that the subsequent buyer would have no knowledge that it was formerly acquired by adverse possession? (I'm not sure to what extent the banks, conveyancers etc unearth this info during settlement process and relay it to the buyers?)
And if it is possible that the new buyers don't come upon this info, how would it work? (E.g. there’s nothing in the contract of sale that would indicate how the property was acquired?)
And, after purchase, how could the new owner discover the adverse possession history in other ways? e.g. is it noted on the property title documentation that you can request from Landata?
Thanks again

 

To sell the property the title would need to be updated to show ownership by the person seeking adverse possession. This would require a court/government authority to authorise the change of title from the the original owner to themselves. They cannot just say "I claim this under adverse possession". Once the legal process is complete the new owner is the legal owner so the act of claiming adverse possession is irrelevant to future dealings in the property. I don't know the intricacies of how long after the granting of adverse possession that the ability of the original owner to appeal lasts.

 

i think it would be hard to sell, bit like if there was a well known ghost in hte house.

 

"Once the legal process is complete the new owner is the legal owner so the act of claiming adverse possession is irrelevant to future dealings in the property. "
Okay so this is essentially what I'm asking about, if anyone else can confirm or deny this detail?

 

Interesting idea @boganfromlogan. I see how that would be possible. On the other hand, the main adverse possession cases that make the news tend to be scandalous, but I’m under the impression that it's more common than people realise in less ethically dubious scenarios as described by the legal expert in that article (e.g. an old woman’s brother inherits the property but has nothing to do with it while she lives in it for decades, it seems fair she should be able to claim title). It would be nice if someone in the know could elaborate on this notion that it would be hard to sell and why, if that is in fact the case.

 

I believe the court granted legal title in the adverse possession case. Thats why he went to court . As owner he can then do as he pleases.

Was the transfer dutiable ? Or was it a case of him being a beneficial owner so a change of legal title is not dutiable ?

Of course his CGT costbase may be minor if he did sell and there is a question as to what his acqusition date is for any CGT discount. I question if his long term maintenance costs and paying rates etc are a CGT cost as it is preliminary to any ownership interest as he must initially establish a common law right to claim by making payments etc But are they preliminary ? Likely yes. At what point in time does a valid claim and cost become a CGT costbase element ? Legal costs to defend title claim likely a CGT cost as at that time he may have a valid common law right. It is incurred to establish legal title and may be a first element cost of title. It may be one for ATO opinion and a ruling as there arent likely too many examples in case law. AP cases are very rare and often dismissed.

Based on UK case law (as UK cases of AP are more enttrenched in common law and tax cases) the courts considered a change of "rights" occurs as prior to the court action the AP claim is a right in common law and not a legal interest in title and that prior to legal title there is a different CGT asset to that of the legal title. So the cgt clock may recommence at the date legal title is given so a 12month + 1 day wait to sell is required to obtain a CGT discount of 50%. I see the ATO could also use that view. Pure speculation of course.

 

adverse possession is 'possessory title' or title by possession. This could be converted to legal title which will then allow the legal owner to sell.

 

In vic, a surveyor (or anyone else with the knowhow), can look at the survey that created the title and see that it was created under section 60 of the transfer of land act which relates to adverse possession.

I work in a survey firm and do a couple of adverse possession related surveys a year, i havent been involved in a whole parcel theft like scenario, instead they have been for slivers of land that have been occupied for a long time, or for lost titles with owners of the land long dead 15 - 100 years ago.

News articles and general discussions give adverse possession and application surveys a bad name. When in reality a good portion of claims are just a mechanism to fix titling inconsistencies (in vic - each state has different adv poss laws).