3 Limitations of actions and adverse possession: Title ... AWS
Limitations of actions and adverse possession: Title in an unpossessed thing manifests when the first person takes possession of it (finders keepers) This gives a prima facie legal fee simple enforceable in rem except against those with a better possessory right This prima facie fee simple manifests into full fee simple after a period • TLA s42(2)(b): the right of an AP (even one with inchoate title) is an exception to indefeasibility (Torrens) • LAA s18: Extinction of title after expiration of limitation period • TLA ss60-62: Once title of registered owner is extinguished, AP can apply to be registered owner of the land (Torrens) Limitation of actions legislation bars the rights to bring an action to recover land or goods after a specified period of time. Chattels: • LAA s5: 6 year time limitation for the recovery of chattels (except defamation) Land: • LAA s8: 15 year time limitation for recovery of possession of land • LAA s18: Extinction of title after expiration of period (AP can assert his title) When time begins to run: • LAA s8: Time runs from the time the cause of action accrues When cause of action accrues: • LAA s9: Has the person been dispossessed? • LAA s14: Has there been an adverse possessor? Acquiring title to public land: • LAA s7: Crown land is not affected by adverse possession If Crown assigns their AP land to a third party, clock starts ticking against transferee, for 15 years (s8) • LAA ss 7A, 7AB, 7B, 7C: Common property/public land Part parcel claims: AP claims may be made in respect of whole parcels (squatters) or part parcels of land (owners at fault for shifting fence, squatters only inhabiting a clear section, or building/surveying mistakes or movement of ground - no fault of owners) Remedies: • Injunction considered prima facie remedy for encroachments • In certain situations (depending on nature of property), an injunction will not be awarded even though there is a clear trespass, equitable damages may be awarded instead • Court can refuse to allow any adjustment of right/alteration of boundaries other than by agreement of the parties • Courts can provide a statutory scheme for discretionary adjustment of the rights/obligations of parties on just terms SCA s38: Damages in addition to or in place of other remedies (injunction or specific performance) (Lord Cairns’ Act) Jaggard v Sawyer • P purchased properties that had been transferred subject to covenants not to use land other than as a private garden and to keep driveway in good repair • D purchased house on opposite end of court and was misled that road was private (thought it was public) • D built a new unit, but any prospective owners would trespass covenant • P didn’t seek interlocutory application • D granted right of way to their property as damages were sufficient (no practical benefit for P of injunction) Applied Shelfer v City of London; If 4 criteria are met then damages in substitution for an injunction may be given: 1. Injury to the plaintiff's legal rights is small (minimal increase in traffic) 2. Capable of being estimated in monetary terms (what D might reasonably have paid for right of way and release from covenant) 3. Can be adequately compensated by a small money payment 4. Would be oppressive to the defendant to grant an injunction (building underway and would leave new property without access) Break Fast Investments v PCH Melbourne • BF renovated its building, PCH owned adjoining buildings, BF’s cladding protruded 3-6cm into PCH airspace • PCH wanted to build in that airspace but it would have been costly for BF to remove the cladding • Injunction is prima facie remedy for trespass and damages will be ordered only in exceptional situations • Here damage to PCH was significant an harm posed by injunction to BF was removal of nonstructural addition, not requiring demolition of building or other major detriment • Can’t buy the right to trespass; mandatory injunction granted
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Requirements to acquire by limitation: 1. The true owner has either discontinued possession or been dispossessed by the AP Dispossession means there are acts by squatter using land which are inconsistent with the rights of the true owner Discontinuance of possession means that the owner has abandoned possession Deemed possession for holders of paper title (only need to do trivial acts or show future plans to show possession) 2. The AP has been in adverse possession for the requisite period of time (look to elements of AP) Once it has been AP, others cannot use the land in a way that is inconsistent with the AP's exclusive possession Elements of adverse possession: Question of fact determined by looking at nature of land and the manner in which it is commonly used and enjoyed 1. Factual possession: ‘Open, not secret; peaceful, not by force; adverse, not by consent of the true owner’ Mulcahy Open = unconcealed, noticeable by a reasonably on the ball owner (true owner realising AP is irrelevant) Peaceful = uninterrupted, exclusive (against whole world) and continuous (owner must feel free to enforce rights) AP has been dealing with the land as an occupying owner might have been expected to deal with it Acts of possession which are done on part of land may provide evidence of AP’s intention for the whole of land Requires appropriate degree of physical control of the land but doesn't have to be forever Buckingham Mulcahy v Curramore, Bowen CJ • AP tried to sell his lot and a disputed lot which he claimed he had AP for 16 years (needed 20 years) • However when he came into possession of the land, it had already been AP by another party for 6 years • Therefore it was a series of independent adverse possessors, each AP dispossessing the previous AP • This prior successive AP could be added to Hurley’s 16 years, giving him possessory title • The acts of possession performed on a portion of a large plot may be sufficient to establish AP over the whole • However, still need to demonstrate appropriate degree of physical control over whole parcel of land Buckingham City Council v Moran • Council had future intent to use land (didn’t discontinue possession), but land left vacant in the meantime • Fence was in poor condition on one neighbouring side, no fence on other side • Moran but a lock on the other gate so only way to access land was through his plot • Moran knew of future plans but intended to possess for time being, continued until limitation period ran • Moran had factual possession; enclosed land with gate, controlling accessibility (complete and exclusive control) • Moran had Intention to possess; enclosure, gate lock, intention to possess for time being • Not necessary to show intention to own or exclude the owner in all future circumstances, only for time being • If AP aware that owner intends a future use of the land inconsistent with AP’s interest, very clear evidence of factual possession and AP required 2. Animus possidendi: Intention to possess the land for one’s own behalf and benefit to the exclusion of others They have made that intention (subjective) clear to the world (objective), including the true owner Acknowledgment that someone else has better title than you is not inconsistent with intention to AP Assessed objectively from words and conduct, requires clear and unequivocal acts, or series of acts Whittlesea Whittlesea v Abbatangelo • Council received land to build shire hall but no construction occurred, family purchased surrounding land • Installed gate for vehicle access, maintained fences without seeking financial contribution of council, maintained land for grazing and livestock, maintained trees and timber, pest control, and held gatherings – series of acts • There is no need for fences to exclude true owner; demonstrated exclusive control over land • Dual purpose of functionality for livestock as well as to assert boundaries was irrelevant • Sufficient factual possession and intention to possess to uphold a finding of adverse possession JA Pye v Graham • Pye owned farm, granted grazing licence to Graham • Upon expiry of licence, Graham asked to get another, Pye refused and asked Graham to leave, Graham didn’t • Graham had restricted vehicle access (owned the only key to road gate) so the only access to land was by foot • Pye did nothing on the land, didn’t kick Graham off or make him pay rent, Graham became AP • Endorsed approach in Buckingham; relevant test is factual possession and intention to possess • Factual possession clear: land within exclusive physical control, farmed the land and treated it as if he owned it • Intention to possess: admission of Pye’s title and willingness to pay not inconsistent with intention to possess
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Not good law in Australia: • Doctrine of implied licence: Where acts of AP didn’t substantially interfere with any future plans the owner has to use the undeveloped land, there is an implied licence permitting AP to commit the acts of possession, therefore an implied licence to legally use the land, therefore no AP because he was not on the land wrongfully Buckinghamshire County Council v Moran • Requirement for inconsistent use: Where land is acquired by the owner for a specific present or future purpose, acts of trespass which are not inconsistent with that purpose do not amount to dispossession Aggregation of successive periods of AP Has there been an effective abandonment of possession? (depends on facts – treating as true owner) Has possessory title been formally transferred without a gap in title? (no gaps if possession has been continuous) Has there been a series of possessors deriving title from each other, with no gap in between possessors? If the successive periods of adverse possession are continuous: Time runs in favour of last squatter, but true owner’s title is extinguished 15 years after first squatter took possession If the successive periods of adverse possession aren’t continuous: s14(2) LAA: Documentary titleholder’s interest is restored and time does not start running until new period of AP occurs Mulcahy v Curramore Ways for the person with the cause of action to stop time running: 1. Adverse possessor abandons possession 2. LAA s16: True owner commences proceedings to recover possession and is successful 3. LAA s16: Peaceable but effective entry onto the land which amounts to a resumption of possession Formal entry (no intention to take possession) will not suffice 4. LAA s24: Signed written acknowledgement of title, admission of ownership not enough Whittlesea, Buckingham Cause of action resets on day of acknowledgement 5. LAA s25: Part payment, requires written signed acknowledgement LAA s26: Effect of acknowledgment or part payment on persons other than the maker or recipient: binds successors in title, resets for subsequent possessors The accrual of the right of action in the case of future interests: If AP takes hold of land, future interest holder can't kick them off because they have no right to immediate possession. • LAA s10(1): Has a cause of action against AP when interest vests in possession (remainders and fixed term leases) • LAA s10(2): Has 15 years since AP, or 6 years since interests vests in possession, whichever is longest • LAA s10(3): If interest in land conveyed after AP, no action can be brought unless within the original owner’s 15 years • LAA s10(4) If A has present and future interest, and land is adversely possessed during their present interest, no action can be brought for their future interest unless possession recovered by person who was currently entitled to the land (in between A's present and future interest) AP rules applying between landlords and tenants: • LAA s10(1): Fixed term Time does not begin to run against the landlord until the date on which the lease expires LAA s13(3): Exception where tenant pays rent to a third party claiming to be entitled to the land, time runs immediately against the landlord LAA s12: Exception where tenant forfeits/breaches tenancy, time runs immediately against landlord • LAA s13(2): Periodic Time starts running at the end of a fixed term lease (when the landlord has a right to regain possession) COA accrues on date of last payment of rent For an oral periodic tenancy, COA accrues at end of first period unless tenant pays rent • LAA s13(1): Tenancy at will COA accrues one year after its creation unless determined earlier
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Requirements to acquire by limitation: 1. The true owner has either discontinued possession or been dispossessed by the AP Dispossession means there are acts by squatter using land which are inconsistent with the rights of the true owner Discontinuance of possession means that the owner has abandoned possession Deemed possession for holders of paper title (only need to do trivial acts or show future plans to show possession) 2. The AP has been in adverse possession for the requisite period of time (look to elements of AP) Once it has been AP, others cannot use the land in a way that is inconsistent with the AP's exclusive possession Elements of adverse possession: Question of fact determined by looking at nature of land and the manner in which it is commonly used and enjoyed 1. Factual possession: ‘Open, not secret; peaceful, not by force; adverse, not by consent of the true owner’ Mulcahy Open = unconcealed, noticeable by a reasonably on the ball owner (true owner realising AP is irrelevant) Peaceful = uninterrupted, exclusive (against whole world) and continuous (owner must feel free to enforce rights) AP has been dealing with the land as an occupying owner might have been expected to deal with it Acts of possession which are done on part of land may provide evidence of AP’s intention for the whole of land Requires appropriate degree of physical control of the land but doesn't have to be forever Buckingham Mulcahy v Curramore, Bowen CJ • AP tried to sell his lot and a disputed lot which he claimed he had AP for 16 years (needed 20 years) • However when he came into possession of the land, it had already been AP by another party for 6 years • Therefore it was a series of independent adverse possessors, each AP dispossessing the previous AP • This prior successive AP could be added to Hurley’s 16 years, giving him possessory title • The acts of possession performed on a portion of a large plot may be sufficient to establish AP over the whole • However, still need to demonstrate appropriate degree of physical control over whole parcel of land Buckingham City Council v Moran • Council had future intent to use land (didn’t discontinue possession), but land left vacant in the meantime • Fence was in poor condition on one neighbouring side, no fence on other side • Moran but a lock on the other gate so only way to access land was through his plot • Moran knew of future plans but intended to possess for time being, continued until limitation period ran • Moran had factual possession; enclosed land with gate, controlling accessibility (complete and exclusive control) • Moran had Intention to possess; enclosure, gate lock, intention to possess for time being • Not necessary to show intention to own or exclude the owner in all future circumstances, only for time being • If AP aware that owner intends a future use of the land inconsistent with AP’s interest, very clear evidence of factual possession and AP required 2. Animus possidendi: Intention to possess the land for one’s own behalf and benefit to the exclusion of others They have made that intention (subjective) clear to the world (objective), including the true owner Acknowledgment that someone else has better title than you is not inconsistent with intention to AP Assessed objectively from words and conduct, requires clear and unequivocal acts, or series of acts Whittlesea Whittlesea v Abbatangelo • Council received land to build shire hall but no construction occurred, family purchased surrounding land • Installed gate for vehicle access, maintained fences without seeking financial contribution of council, maintained land for grazing and livestock, maintained trees and timber, pest control, and held gatherings – series of acts • There is no need for fences to exclude true owner; demonstrated exclusive control over land • Dual purpose of functionality for livestock as well as to assert boundaries was irrelevant • Sufficient factual possession and intention to possess to uphold a finding of adverse possession JA Pye v Graham • Pye owned farm, granted grazing licence to Graham • Upon expiry of licence, Graham asked to get another, Pye refused and asked Graham to leave, Graham didn’t • Graham had restricted vehicle access (owned the only key to road gate) so the only access to land was by foot • Pye did nothing on the land, didn’t kick Graham off or make him pay rent, Graham became AP • Endorsed approach in Buckingham; relevant test is factual possession and intention to possess • Factual possession clear: land within exclusive physical control, farmed the land and treated it as if he owned it • Intention to possess: admission of Pye’s title and willingness to pay not inconsistent with intention to possess
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Not good law in Australia: • Doctrine of implied licence: Where acts of AP didn’t substantially interfere with any future plans the owner has to use the undeveloped land, there is an implied licence permitting AP to commit the acts of possession, therefore an implied licence to legally use the land, therefore no AP because he was not on the land wrongfully Buckinghamshire County Council v Moran • Requirement for inconsistent use: Where land is acquired by the owner for a specific present or future purpose, acts of trespass which are not inconsistent with that purpose do not amount to dispossession Aggregation of successive periods of AP Has there been an effective abandonment of possession? (depends on facts – treating as true owner) Has possessory title been formally transferred without a gap in title? (no gaps if possession has been continuous) Has there been a series of possessors deriving title from each other, with no gap in between possessors? If the successive periods of adverse possession are continuous: Time runs in favour of last squatter, but true owner’s title is extinguished 15 years after first squatter took possession If the successive periods of adverse possession aren’t continuous: s14(2) LAA: Documentary titleholder’s interest is restored and time does not start running until new period of AP occurs Mulcahy v Curramore Ways for the person with the cause of action to stop time running: 1. Adverse possessor abandons possession 2. LAA s16: True owner commences proceedings to recover possession and is successful 3. LAA s16: Peaceable but effective entry onto the land which amounts to a resumption of possession Formal entry (no intention to take possession) will not suffice 4. LAA s24: Signed written acknowledgement of title, admission of ownership not enough Whittlesea, Buckingham Cause of action resets on day of acknowledgement 5. LAA s25: Part payment, requires written signed acknowledgement LAA s26: Effect of acknowledgment or part payment on persons other than the maker or recipient: binds successors in title, resets for subsequent possessors The accrual of the right of action in the case of future interests: If AP takes hold of land, future interest holder can't kick them off because they have no right to immediate possession. • LAA s10(1): Has a cause of action against AP when interest vests in possession (remainders and fixed term leases) • LAA s10(2): Has 15 years since AP, or 6 years since interests vests in possession, whichever is longest • LAA s10(3): If interest in land conveyed after AP, no action can be brought unless within the original owner’s 15 years • LAA s10(4) If A has present and future interest, and land is adversely possessed during their present interest, no action can be brought for their future interest unless possession recovered by person who was currently entitled to the land (in between A's present and future interest) AP rules applying between landlords and tenants: • LAA s10(1): Fixed term Time does not begin to run against the landlord until the date on which the lease expires LAA s13(3): Exception where tenant pays rent to a third party claiming to be entitled to the land, time runs immediately against the landlord LAA s12: Exception where tenant forfeits/breaches tenancy, time runs immediately against landlord • LAA s13(2): Periodic Time starts running at the end of a fixed term lease (when the landlord has a right to regain possession) COA accrues on date of last payment of rent For an oral periodic tenancy, COA accrues at end of first period unless tenant pays rent • LAA s13(1): Tenancy at will COA accrues one year after its creation unless determined earlier
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