successful adverse possession cases

Your property is likely your most valuable asset. Claims can be made to Land Victoria under the Transfer of Land Act 1958 (Vic), by seeking a declaration from the County Court of Victoria or Supreme Court of Victoria pursuant to the Limitation of Actions Act 1958 (Vic) or via the Magistrate’s Court of Victoria pursuant to the Fences Act 1968 (Vic). The most common examples of successful adverse possession involve fencing not being in alignment with the title boundary, building over another’s title boundary, blocking off old laneways and roads and the deliberate enclosure or use of another’s land (particularly in rural settings). so far as is reasonably practicable and so far as the process of laws will allow” [5] .Finally, according to Section 29 and 30 of the Limitation Act 1980 if the squatter receive any written acknowledgement of the paper owner’s title the time will stop running in favour of the squatter. Adverse possession is a legal principle enabling the occupier of a piece of land to obtain ownership. *You can also browse our support articles here >. To limit the doctrine of adverse possession to the latter possession places a premium on intentional wrongdoing contrary to fundamental justice and policy. Some examples of that behaviour are to secure the boundary to exclude others or to add a lock to the gate. Under this new Act the squatter must claim for the title to the registered estate by applying to the Land Register in order to become the owner of the land. [7], After 1925 the law has been changed. Firstly, “ factual possession” and secondly “intention to possess”. Do you have a 2:1 degree or higher? [20] According to Denman CJ in Nepean v Doe D. Knight [21] soon after the passing of the 1833 Act it was held that “the second and third sections of the Act… have done away with the doctrine of non-adverse possession, and… the question is whether twenty years have elapsed since the right accrued whatever the nature of the possession.” [22] This statement was made also in Culley v Doe D. Taylerson [23] so what constitutes “possession” in the ordinary sense of the word? The orders for the easement are subject to appeal to be heard late 2018. 18th Jul 2019 The company had no Crown immunity and so ASIC did not have the benefit of Crown immunity in respect to the property. The general rule of thumb is that to take an adverse possession case all the way to trial is going to cost each party $50,000. Through adverse possession, a trespasser can gain ownership of just a few feet of property or hundreds of acres. Claims usually start when a party wants to replace a fence or undertake a development, subdivision or renovation and obtains a survey. But before you can work out how to defend a claim, we need to understand how a claim is made. process by which someone who is not the legal owner of a piece of land can have land transferred to them following possession and exclusive occupation of it for a specified period of time 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. 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. If a client has large parcels of land and it is surveyed, it may be enough to restart the clock for an adverse possession claim if the surveyor surveys all the land and marks boundaries. Where the area claimed includes a road, reserve or easement, evidence of non-use for 30 years or more is required. Before 1833 “adverse possession bore a highly technical meaning. The ECJ reached to the conclusion that depriving a land owner of land without any compensation is in breach of article 1 which is referred to the entitlement to the peaceful enjoyment of possessions and is also unlawful, except in the case where a compensation is paid. The case of Techbild Ltd v Chamberlain (1969) illustrates this. Ideally, you want an attorney who has experience representing adverse possessors in trespass to try title lawsuits. 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. TLFC Principal and Business Law Specialist, Phillip Leaman shares his expertise on Adverse Possession in an article featured in the March 2018 issue of Traverse, the News Bulletin of The Institution of Surveyors Victoria. Fencing and enclosing the land and payment of rates suggests an intention. Possession cannot be with the consent of the owner but the owner’s knowledge of the possession is not relevant. Looking for a flexible role? By submitting an application for adverse possession where none of the conditions in paragraph 5 applies, the applicant effectively risks being evicted from the land by the paper owner. Lesson #3: All Necessary Parties Must Be Part of an Adverse Possession Case. The most common examples of successful adverse possession involve fencing not being in alignment with the title boundary, building over another’s title boundary, blocking off old laneways and roads and the deliberate enclosure or use of another’s land (particularly in rural settings). Take a look at some weird laws from around the world! The only intention that we have to probe is that there was an intention to occupy and use the land as our property. In case the Parliament decided to retain the law of adverse possession, the Parliament could have simply required adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Moreover “from Pye v UK, it would seem that the present limitation regime in compulsory purchase cases is more draconian even than the then regime for adverse possession.” [32], In concluding “it might be argued that the law has not significantly changed and there is merely a recognition that the term adverse possession is a term of art and does not hold the meaning which on sight, one might expect.” [33]. In that case it was held that the adverse possession as provided in LRA 1925 did not constitute any violation of the registered owner’s entitlement to peaceful enjoyment of his possessions. Surveyors should check if land is noted as a lane or road and if there are title discrepancies, note these to clients for further investigation. Under Washington State case law and statutes, an adverse possessor can usually only claim a right to the property after 10 years. In the case of Buckinghamshire cc v Moran [1990] was highlighted the requirements which must be met to establish a successful claim on adverse possession. 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 … 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! Given the timeframe, clients need to obtain advice quickly and be sure of their position before embarking on costly litigation. This is not an example of the work produced by our Law Essay Writing Service. The Court found a claim could therefore be made against a deregistered company. Mr Justice Slade in Powell v McFarlane [4] gave the definition of intention to possess which is: “The intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title. The more difficult case would be a line of “boundary trees" planted by an adverse possessor. (E.g., Sorensen v. Costa, supra, 32 Cal. [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. Level 2, 333 Queen Street, Melbourne Victoria 3000, Adverse Possession – How to Defend a Claim, article featured in the March 2018 issue of, Tisher Liner FC Law (TLFC) Privacy Policy, That they have had actual possession of the land which is exclusive to the paper title owner and the world at large. In some cases, you have one shot to make a claim successfully. Beaulane V Palmer, now cannot stand after Ofulue. You can view samples of our professional work here. However, in the recent case of Thorpe v Frank 2019 EWCA Civ 150, the Court of Appeal seemed to … Adverse use is a requirement for one of these claims, and this presumption helps a claimant make this required showing. This case highlights that exclusion is not necessary for a successful claim of adverse possession. These requirements have been confirmed in the case of JA Pye (Oxford) Ltd. and others v Graham and Another [2] which is a recent case and many fundamental principles of adverse possession are discussed in this case. This prevents a squatter to claim for the land just because a specific period of time has passed. It is! “ Now that Ofulue has followed Pye v United Kingdom, the reasoning of the Grand chamber will be binding in future English cases where the registered proprietor disputes whether the squatter has proved the required intention to possess the land.” [17], The fact that the reasoning in that Pye v Unites Kingdom has been incorporated into domestic law it is very important because when the grand Chamber held in 2007 that the LRA 1925 regime did not violate the ECHR, the Land Registry continued to faced the case of Palmer as a binding authority in domestic law. 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. The decision in the case of Buckinghamshire cc v Moran [13] has been approved by the House of Lords in Pye v Graham. The Irish Courts in assessing the factual possession element of adverse possession may draw on the persuasive authority of this UK decision and could potentially result in more cases in Ireland making successful claims for adverse possession, provided the person making the application is still able to prove they have acted in a way typical of an owner of that land. That change was really important because the number of successful claims for adverse possession has been decreased [1] . . An adverse possessor’s use must be “exclusive" and “continuous." 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 concept of “non-adverse possession” is deemed to be the root of the problem. After doing so, the party opposing such a claim has the burden to overcome this presumption, and show that such use was allowed. 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. An alternative claim was made by the defendant that he had acquired an easement through the doctrine of the lost modern grant. 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. This means that the rule in Leigh v Jack has been clearly rejected. When someone possessed his land and he did nothing about it, then he loses the title of the land. The final and really important step in relation to the development of the doctrine of adverse possession through the year is that after Rye v united Kingdom it was incorporated a compulsory purchase compensation is because of the Human Rights Act 1998 and of the European Court of Justice. For, adverse possession requires that the true owner be given the opportunity to effectively deal with and terminate the same on the part of the claimant. Reference this. However Hoffmann J in Moran case [27] submitted that what is necessary is “not an intention to possess”. The Limitation Act 1980 put a limit of 12 years in relation to unregistered land. The land was not enclosed in any way and remained unfenced for the whole period claimed. What appears on its face to be a temporary trespass may in fact constitute sufficient taking of possession for the purposes of adverse possession, depending on the nature of land in question and the manner in which land of that nature is commonly used and enjoyed. Assets of deregistered companies vest in the name of the Australian Securities and Investment Commission (ASIC). But just because someone makes a claim, it does not mean that the registered proprietor cannot do anything to defend the claim. There must be an intention to possess, too. 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. If the possession, even though not concealed, is not known, either actually or constructively, … 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. Phillip acted for the successful party in the leading Victorian Supreme Court of Victoria authority in the area of adverse possession, Abbatangelo v Whittlesea Council. Nevertheless, the case reminds us of the principles surrounding Adverse Possession, which were clarified a year or so ago in Zarb v Parry. Moreover, this case applies equally whether the disputed land is registered or unregistered. Clients who rely on predecessors in title need to be careful when making a claim to ensure that they independently verify what the previous owner tells them and to obtain a formal deed of assignment of possessory rights. Enclosure is the best possible evidence of an intention. [18]. One of the best ways to prove you have physical possession of the land is to fence off or otherwise enclose the land. Elements of Adverse Possession. Fortunately, Mr Best was successful in appealing the decision and was soon able to claim adverse possession UK. The decision in Pinder is correct since it is consistent with principle. 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. Claimants without 15 years possession in their own right should speak to neighbours, search survey records and speak to previous owners to establish possession. This concept was noted by the common law end equity into the limitation statute of James. Secondly, the possession of the land must occur without the consent of the paper owner. Apart from the attack by the plaintiff that there was not sufficient possession of the land, the plaintiff was successful in breaking the 15 year period due to: It is important to note that a mere letter objecting to the possession will not be enough to stop time running. . … 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. A key point of the above case was that Mrs Kirkby used the Verge to hold scaffolding when she was redeveloping her own property. Here it was held that possession can be adverse when the acts done were inconsistent with the purposes for which the paper were inconsistent with the purposes for which the paper owner thinking to use the land. A successful adverse possession claim requires the occupation to meet all four of the following common elements: It must be hostile, or occupation of the land in a manner that is adverse … 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. The adverse possessor cannot share possession with others. It will always be difficult to make a claim if there is no attempt to exclude people off the land (usually done by enclosure or signage). The case of J A Rye (Oxford) Ltd v Graham [9] applies to all cases of adverse possession. This was established in the case of Buckinghamshire CC v Moran and was affirmed in the case of Pye v Graham. The doctrine of adverse possession has a particular fascination for me, but interest in this topic goes far beyond the surveying profession. The intention to posses is known as “animus possessendi”. Disclaimer: This work has been submitted by a law student. Land Law Furthermore, in many cases squatters show that if the paper owner asked from them to pay for their occupation in the land they would have done it. Section 96 of the Land Registration Act 2002 provides that the time of 12 years under Limitation Act 1980, after which the paper owner can evict the squatter, will not be valid to registered land. The Court found that there was a potential claim for adverse possession but the main issue was whether or not ASIC was subject to the statutory immunity from adverse possession as being part of the Crown (Section 7 of the Limitation of Actions Act). Free resources to assist you with your legal studies! After 1833 the notion of “adverse possession” was reintroduced by the Limitation Act 1939 (section 10) and is exactly the same as in paragraph 8(1) of schedule 1 to the 1980 Act. The case of Edington v Clark (1964) is an example of this necessary qualification. (2) For the purpose of this section, property is deemed possessed in any of the following cases: (a) When it has been usually cultivated or improved. 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. Smart v London Borough of Lambeth This case involved a handful of properties in Clapham, which were acquired by Lambeth London Borough Council in … This new Act Set a new regime for the registration of an adverse possessor of an estate in land. I know, sounds riduclous right? Even though, the High Court in Beaulane Properties ltd v Palmer [2005] make a try to resurrect the rule in Leigh v Jack. The Iowa Court of Appeals recently affirmed a Winterset couple's right to ownership of an asphalt driveway and two carports through adverse possession. If you intend to file a suit for adverse possession, it's best to have an experienced attorney on your side. In addition to this the decision of the court of Appeal in the case of R v Secretary of state for the Environment, Ex p Davies [30] was wrong. 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). Anyone who can claim adverse possession under the old regime will want to do so, as there are fewer obstacles to a successful claim. Attorneys, employees of government agencies and the general public all become enthusiastic when squatters’ rights or trespass are mentioned. There have been some recent important cases in the area. 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. However, the rationale for allowing acquisition of title through adverse possession … In relation to registered land, according to 75(1) of the Land Registration Act 1925 after the expiry of the limitation period the title is not extinguished but the registered owner hold the land thereafter in trust for the squatter. Thirdly, there must be a factual possession as in Powell v Mcfarlane [3] . Celebrating over 45 years of premium legal service. Some recent cases are really important since they take the law in a new direction. 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 … The … It is almost impossible to establish adverse possession without some form of enclosure; and. 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. possession under a licence from him or under some contract or trust” [6] . Apart from a mow line, there was no difference between the disputed land and the balance of the plaintiff’s land. Today it merely means possession inconsistent with and in denial of the title of the true owner, and not, e.g. For example in Littledale v Liverpool college [26] Lindley MR mentioned to the claimant relying on “acts of ownership”. As Professor Dakray says “such inconsistent use was called adverse possession”. The registered proprietor of the land was a deregistered company. Mere personal convenience will not constitute a sufficient intention. Adverse possession, sometimes colloquially described as " squatter's rights ", is a legal principle under which a person who does not have legal title to a piece of property — usually land (real property) — acquires legal ownership based on continuous possession or occupation of the property without the permission of its legal 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. This successful adverse possession case involves two adjoining landowners and a disused right of access, previously a "dunny lane". This qualification is provided in Section 32 of the Limitation Act 1980 which says that possession must not be deliberately concealed. After the expiration of this period the squatter can claim for being the title owner of the land. Their possession has continued for at least 15 years without interruption. The Abbatangelo v Whittlesea City Council case sets out some useful guidance on the principles considered for a claim to be successful. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. If the property was sold in the last 15 years, see if the claimant made an offer to buy the land; Check if it is a lane or road on a subdivision, as it might also benefit the lot owner of the subdivision who can object to the claim; Research the history of the fences and see if there has been a break in possession; Check old surveys and aerial photos to work out position of fences over the 15 year period; Consider issuing a notice to fence to bring the matter to a head. 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 case of J A Rye (Oxford) Ltd v Graham applies to all cases of adverse possession. Numerous cases have since recognized that title by adverse possession may be acquired though the property was occupied by mistake. For a successful adverse possession claim, and to be registered as the owner of the land, one of the elements which has to be proven, is that you have been in physical possession of the land. Claimants should get clear evidence of possession from a variety of sources and obtain aerial photographs if needed. In this case Mr Justice Slade said: “Factual possession signifies an appropriate degree of physical control”. Requirements for a claim In order to make a successful claim for adverse possession in both registered land and unregistered land, the squatter must establish factual possession and that they had the intention to possess. In the same way Slade J in Powell mentioned to the necessary intention as being an “intention to own”. The case above shows that in order to make a successful claim for adverse possession a person must show that they have been in actual possession of the property and have treated it as their own excluding all others from use. 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. The most important result from Ofulue was that Lord Browne-Wilkinson called in the case of Pye v Graham, the “heresy” in Leigh v Jack [11] .In this case Bramwelll L.J noted that possession by a squatter is only adverse if his occupation is inconsistent with the paper owner’s plans for the land [12] . The Land Registration Act 1997 introduce a new section 123 in the LRA 1925, which says that there must be the requirement of compulsory registration to conveyances by way of gift and assents. As Chief Justice Cockburn noted in Seddon v Smith (1877) one very strong evidence of factual possession is the enclosure by fencing. The Land Registration Act 2002 set 10 years period of time that the squatter can possess a land and not 12 years as in unregistered land. Over the years, a few fruit trees were also planted on the disputed land. revived the “heresy”. Bhatha lodged a caveat claiming a freehold estate in some land by adverse possession. 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. [28] The court of Appeal in that case adopted this correct proposition. 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. Furthermore, there must be open possession. 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. Those provisions in relation to registered land have been changed by the Land Registration Act 2002 [8] . “Possession need not be inconsistent with the future intended use of the land by the paper owner to be adverse” [14] . [15] Moreover in Beaulane Properties ltd v Palmer [16] , Nicholas Strauss Q.C. 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. This presumption is highly important for a successful claim. 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 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. The legal term for this is "adverse possession." The problem could be avoided saying that there are two elements which are necessary for legal possession. The typical case would be a fence enclosing a portion of property belonging to another. In the past, estate owners had to be vigilant as regards the land that they owned but did not use it for themselves. As Slade J said in Powell “factual possession signifies on appropriate degree of physical control.” [25] In vary old cases the judges treated the concept of intention to possess as being necessary that the squatter must have an intention to own the land in order to be in possession. How do claims start? This often arises when there is an honest … So, any squatter must satisfy all the conditions above before the time started to run in his favour. The actual measurements to see what is necessary is “ not an example of the word or! In land Palmer [ 16 ], Nicholas Strauss Q.C Court found a claim successfully results... Owner of the case of Pye v Graham [ 9 ] applies to all cases of adverse.. Chief Justice Cockburn noted in Seddon v Smith ( 1877 ) one very strong of. 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