Example of part of topic: Acquisition of title by Adverse Possession
Example of part of topic:
Acquisition of title by Adverse Possession Limitations of Actions re Chattels and rent • 6 year time limitation for the recovery of: o Chattels LAA s5(1)(a) o Rent LAA s19 • 15 year time limitation for recovery of land o LAA Pt 1, Div 3 (s7-18) Limitations of Actions Act 1958 S5(1)(a): Contracts and torts 1. The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued – a. Subject to ss1AAA,1AA, 1A, actions founded on simple contract (incl contract implied in law) or actions founded on tort incl actions for damages for breach of statutory duty S19: Actions to recover rent No action shall be brought to recover arrears of rent/damages in respect thereof after the expiration of 6 years from the date on which the arrears became due What constitutes adverse possession? • Must be without the consent of the truth owner • Cannot be adverse if occupier is on the premises under a lawful title (eg. Lease) • Exception to indefeasibility • Actual possession of the land without the licence of the true owner o Possession includes two elements (Pye v Graham): 1. Factual possession: demonstrates an appropriate degree of physical control of the land in the circumstances, considering: • Character and value of property • Suitable and natural mode of using it • Course of conduct which a proprietor might be expected reasonably to follow with regard to his own interests 2. Animus possidendi (intention to possess) • Intention to use the land as his own and exclude all others, including true owner, so far as is practicable and the law permits • Abbatangelo: “while a statement by a person that he or she intended to possess land 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” • Must intend to exclude strangers, but also the true owner specifically • Don’t necessarily need intention to own, just to possess
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2 common examples of proof of intention (have to look at all the facts though): o Fencing (enclosure of area): Abbatangelo § Doesn’t matter that fence was erected to keep animals from escaping, still a sign to others not to enter the land o Payment of rates
J.A. Pye (Oxford) v Graham [2003] • P granted G grazing licence to farm, but it ran out, it was not renewed and G was asked to vacate. G didn’t do this, remained on the land for statutory period à barred title of documentary owner. Did things on the land that true owner would do. o Also did things that weren’t part of licence, helps establish intention o G had only key to gate • P argued because G requested to pay for a new licence, indicates he was not adversely possessing the land o This was rejected à just because he was willing to pay, doesn’t mean he can't also intend to possess it • There are two elements necessary for legal possession: o Sufficient degree of physical custody and control o Intention to exercise such custody and control on one’s own behalf and for one’s own benefit • Key legal principles: o Cannot adversely possess while under a licence à you have consent of actual owner o Request to pay does not inhibit time starting to run o If you control road access à strong indication of factual/intention Whittlesea City Council v Abbatangelo [2009] • Vacant land that Council owned, placed trees on it. A purchased property around it in 1958, treated disputed land as their own, had a gate installed so they could access it. In 2004 A advised Council of her adverse possession claim of the disputed land. Council disputed claim, and then erected a new fence, installed chain and lock. o A argued certain acts eg. Maintenance of fences, use of land for grazing, removing weeds, gardening etc, using it for shade, social activities o A also installed water trough – reasonably permanent structure à Council said no pipes meant it could be moved (not accepted) o Council argued written document to A in 1979 acknowledged it as their land, and also A had told people council owned the land o Council argued A only erected fence to keep cattle out à not accepted as fences can have multiple uses including keeping others out of land o A moved to Geelong for 5 years but kept coming back to maintain the property every weekend o Only vehicle access is through A’s property • Ashley, Redlich, Kyrou JJ: set out no. of principles necessary to establish adverse possession:
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o In the absence of evidence to the contrary, the owner of land is deemed to be in possession of the land and the person prima facie with the right to possession o An alleged possessor must show both factual possession and the requisite intention to possess (animus possidendi) with an appropriate degree of physical custody and control for their own benefit o Each case turns on its own facts, but alleged possessor must show they have dealt with the land as an owner may have been expected to deal with it o Must be clear that the intention to possess is to the exclusion of all others o There does not need to be a conscious intention to exclude the true owner, just an intention to exercise exclusive control o Possession of the land can not be with the consent of the true owner o Irrelevant whether or not the title owner realizes dispossession has occurred o Acts of possession with respect to only part of the land may constitute as possession of all of the land o Person’s use of the land may amount to enjoyment for a special benefit from the land by casual acts of trespass, rather than factual possession. Mere use of the land/special benefit will not be enough to constitute factual possession/demonstrate intention If time hadn’t started running in the 60s it had definitely started in the 70s Oral admittance that you don’t own a property isn’t enough à needs to be a signed written acknowledgement (s24 LAA) Possibly the case that triggered the change in LAA à now you can't adversely possess Council land (s7B)
Must possession be continuous throughout limitation period/can successive periods of adverse possession be aggregated? Mulcahy v Curramore Pty Ltd [1974] • Involved adverse possession by successive trespassers and whether they had rights over land. No one had lived on land for 6 years because there was a bushfire, property was uninhabitable • Owners still had intention to possess, but it was just impractical to live there during that 6 year period à but after bushfire, no steps were taken to restore fences • Still factual possession and intention to possess • If we have multiple trespassers they can transfer à considered no break in time • Bowen CJ: factual possession must be: o “open, not secret” à would be “noticed by a documentary owner reasonably careful of his or her interests” o Peaceful (not by force) o Adverse (not by consent of the true owner) § Unlikely against family members, usually some licence o Can have series of trespassers over limitation period that extinguish owner’s title à must be continuous trespass
o If the adverse possessor abandons à true owner gets rights back, new person can't rely on first adverse possession to extinguish owner’s title, needs to start again
Acquisition of title by Adverse Possession Limitations of Actions re Chattels and rent • 6 year time limitation for the recovery of: o Chattels LAA s5(1)(a) o Rent LAA s19 • 15 year time limitation for recovery of land o LAA Pt 1, Div 3 (s7-18) Limitations of Actions Act 1958 S5(1)(a): Contracts and torts 1. The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued – a. Subject to ss1AAA,1AA, 1A, actions founded on simple contract (incl contract implied in law) or actions founded on tort incl actions for damages for breach of statutory duty S19: Actions to recover rent No action shall be brought to recover arrears of rent/damages in respect thereof after the expiration of 6 years from the date on which the arrears became due What constitutes adverse possession? • Must be without the consent of the truth owner • Cannot be adverse if occupier is on the premises under a lawful title (eg. Lease) • Exception to indefeasibility • Actual possession of the land without the licence of the true owner o Possession includes two elements (Pye v Graham): 1. Factual possession: demonstrates an appropriate degree of physical control of the land in the circumstances, considering: • Character and value of property • Suitable and natural mode of using it • Course of conduct which a proprietor might be expected reasonably to follow with regard to his own interests 2. Animus possidendi (intention to possess) • Intention to use the land as his own and exclude all others, including true owner, so far as is practicable and the law permits • Abbatangelo: “while a statement by a person that he or she intended to possess land 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” • Must intend to exclude strangers, but also the true owner specifically • Don’t necessarily need intention to own, just to possess
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2 common examples of proof of intention (have to look at all the facts though): o Fencing (enclosure of area): Abbatangelo § Doesn’t matter that fence was erected to keep animals from escaping, still a sign to others not to enter the land o Payment of rates
J.A. Pye (Oxford) v Graham [2003] • P granted G grazing licence to farm, but it ran out, it was not renewed and G was asked to vacate. G didn’t do this, remained on the land for statutory period à barred title of documentary owner. Did things on the land that true owner would do. o Also did things that weren’t part of licence, helps establish intention o G had only key to gate • P argued because G requested to pay for a new licence, indicates he was not adversely possessing the land o This was rejected à just because he was willing to pay, doesn’t mean he can't also intend to possess it • There are two elements necessary for legal possession: o Sufficient degree of physical custody and control o Intention to exercise such custody and control on one’s own behalf and for one’s own benefit • Key legal principles: o Cannot adversely possess while under a licence à you have consent of actual owner o Request to pay does not inhibit time starting to run o If you control road access à strong indication of factual/intention Whittlesea City Council v Abbatangelo [2009] • Vacant land that Council owned, placed trees on it. A purchased property around it in 1958, treated disputed land as their own, had a gate installed so they could access it. In 2004 A advised Council of her adverse possession claim of the disputed land. Council disputed claim, and then erected a new fence, installed chain and lock. o A argued certain acts eg. Maintenance of fences, use of land for grazing, removing weeds, gardening etc, using it for shade, social activities o A also installed water trough – reasonably permanent structure à Council said no pipes meant it could be moved (not accepted) o Council argued written document to A in 1979 acknowledged it as their land, and also A had told people council owned the land o Council argued A only erected fence to keep cattle out à not accepted as fences can have multiple uses including keeping others out of land o A moved to Geelong for 5 years but kept coming back to maintain the property every weekend o Only vehicle access is through A’s property • Ashley, Redlich, Kyrou JJ: set out no. of principles necessary to establish adverse possession:
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o In the absence of evidence to the contrary, the owner of land is deemed to be in possession of the land and the person prima facie with the right to possession o An alleged possessor must show both factual possession and the requisite intention to possess (animus possidendi) with an appropriate degree of physical custody and control for their own benefit o Each case turns on its own facts, but alleged possessor must show they have dealt with the land as an owner may have been expected to deal with it o Must be clear that the intention to possess is to the exclusion of all others o There does not need to be a conscious intention to exclude the true owner, just an intention to exercise exclusive control o Possession of the land can not be with the consent of the true owner o Irrelevant whether or not the title owner realizes dispossession has occurred o Acts of possession with respect to only part of the land may constitute as possession of all of the land o Person’s use of the land may amount to enjoyment for a special benefit from the land by casual acts of trespass, rather than factual possession. Mere use of the land/special benefit will not be enough to constitute factual possession/demonstrate intention If time hadn’t started running in the 60s it had definitely started in the 70s Oral admittance that you don’t own a property isn’t enough à needs to be a signed written acknowledgement (s24 LAA) Possibly the case that triggered the change in LAA à now you can't adversely possess Council land (s7B)
Must possession be continuous throughout limitation period/can successive periods of adverse possession be aggregated? Mulcahy v Curramore Pty Ltd [1974] • Involved adverse possession by successive trespassers and whether they had rights over land. No one had lived on land for 6 years because there was a bushfire, property was uninhabitable • Owners still had intention to possess, but it was just impractical to live there during that 6 year period à but after bushfire, no steps were taken to restore fences • Still factual possession and intention to possess • If we have multiple trespassers they can transfer à considered no break in time • Bowen CJ: factual possession must be: o “open, not secret” à would be “noticed by a documentary owner reasonably careful of his or her interests” o Peaceful (not by force) o Adverse (not by consent of the true owner) § Unlikely against family members, usually some licence o Can have series of trespassers over limitation period that extinguish owner’s title à must be continuous trespass
o If the adverse possessor abandons à true owner gets rights back, new person can't rely on first adverse possession to extinguish owner’s title, needs to start again
