LLB220 Study Guide - Final Guide: Aust, Christopher Slade, General Position
Title to Land & Adverse Possession:
DEFINITIONS:
Adverse possession: principle that allows for the documentary owners title to be statutorily
barred after the satisfaction of a specific period.
Documentary owner (DO): true owner of the property
Adverse possessor (AP): individual with a possessory interest in the property
Note: before the statutory period has elapsed, the AP has the best title to the whole world
except DO
1. Identify the adverse possessor (AP) and the documentary owner (DO)
Founding case: Asher v Whitlock
AP: person who has taken possession of the land for a period long enough to
bar the DO’s title to claim
2. Is the DO currently dispossessed?
Dispossession or discontinuance of possession – s 28
DO never enters possession, common with inheritance – ss 29-30
3. Has the land been adversely possessed by another? – SUBSTANTIVE ELEMENTS:
Requires factual possession – Mulchay v Curramore Pty Ltd [1974]
Open, not secret
Re Riley (1965) – possession of an underground lot, with DO
having no knowledge, was sufficient
Peaceful, not by force
Section 28 of Limitation Act
Harrett v Green (1883) – squatter defending property with
shot guns and warning signs was allowed
Some degree of force is accepted
Bartlett v Ryan (2000) – DO was so intimidated that he or she
is unable to enforce her own rights, not peaceable possession
Not by the consent of the true owner – lease or licence???
Richardson v Greentree (1997) – family relationships may
negative the ‘adverse’ aspect, must est. an intention ‘to
exclude the whole world from the land or an intention to take
possession from the documentary title holder’
Permission may be revoked
DO must prove withdrawal of permission (Sandhu v Farooqui)
Physical control:
JA Pye (Oxford) Pty Ltd v Graham – necessary to have ‘a
sufficient degree of physical custody and control’
Must also be an ‘intention to posses’
Must be shown unequivocally – Buckinghamshire Country Council v
Moran [1990]
Whittlesea City Council v Abbatangelo (2009) 259 ALR 56, 60:
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‘…while a statement by a person that he or she intended to
possess will not be enough in itself to establish such an
intention, it may be relevant when taken in combination with
other evidence suggesting an intention to possess.’
Slade J, Powell v MacFarlane (1979) 38 P & CR 452, 471-2:
‘…involves 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 if he be not himself the possessor, so far as it is
reasonably practicable and so far as the processes of the law
will allow.’
Cervi v Letcher [2011] VSC 156 (para 17(4)) expanded upon Powell:
‘… the courts will… require clear and affirmative evidence that
the trespasser… not only had the requisite intention to
possess, but made such intention clear to the clear. If his acts
are open to more than one interpretation and he has not
made it perfectly plain to the world at large by his actions or
words that he has intended to exclude the owner as best he
can, the courts will treat his as not having had the [requisite]
animus possidendi…’
EXAMPLES of successful matters (still based on circumstances):
Building on the property – Mulchay v Curramore Pty Ltd
Residing in and occupying the property – Mulchay v Curramore
Paying rates and taxes - Mulchay v Curramore Pty Ltd
Fencing the property – Mulchay v Curramore Pty Ltd
Maintinaing trees and gardens – Newington v Windeyer (1985)
Blocking access so others can’t use land – Newington v Windeyer
Summary of the elements of factual possession and intention:
AUTHORITY – Tamberlin AJ, Bridges v Bridges [2010] NSWC 1287 at [14]
1. ‘…must be shown to have had both factual possession and a requisite intention to possess
to the land…
2. …must be single and exclusive possession and this is a question of fact dependant on
particular circumstances…
3. …intent to possess is that of the claimant to title by possession and involves an intention in
relation to the whole world…
4. …must be clear and affirmative evidence that the claimant has acquired possession.
Equivocal acts will normally not suffice.
5. … acts must be indicative of the requisite intention…
6. …question is whether the claimant adverse possessor has disposes the paper owner by
having possession without the consent of the owner…
7. …not an intention to own or even an intention to acquire ownership of the land, but an
intention to possess it. The claimant… need not subjectively believe that he or she is the
owner…
8. …statement of intention by a claimant adverse possessor must be treated cautiously as it
may be self-serving, but it may be relevant with other evidence…
9. …use falling short of possession will not suffice…
10. …no requirement that the use… be inconsistent with the paper owner’s present or future
use…’
find more resources at oneclass.com
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Document Summary
Adverse possession: principle that allows for the documentary owners title to be statutorily barred after the satisfaction of a specific period. Documentary owner (do): true owner of the property. Adverse possessor (ap): individual with a possessory interest in the property. Note: before the statutory period has elapsed, the ap has the best title to the whole world except do. Identify the adverse possessor (ap) and the documentary owner (do) Ap: person who has taken possession of the land for a period long enough to bar the do"s title to claim. Dispossession or discontinuance of possession s 28. Requires factual possession mulchay v curramore pty ltd [1974] Re riley (1965) possession of an underground lot, with do having no knowledge, was sufficient. Harrett v green (1883) squatter defending property with shot guns and warning signs was allowed. Bartlett v ryan (2000) do was so intimidated that he or she is unable to enforce her own rights, not peaceable possession.
