Topic 3: Adverse Possession Introduction ⢠Proprietary title consists of ...
Topic 3: Adverse Possession Introduction Proprietary title consists of documentary proof of title. Possessory title consists of factual possession where it is enforceable against the world except to another who can show a superior right to possession. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess. o Buckinghamshire County Council Hierarchy: o Common law estate: Highest and most enforceable form of land title. In rem proprietary title. Enforceable against the rest of the world. Owner of the estate is deemed to be in possession. o Adverse possession: Absolute defence enforceable against paper title owner. Not enforceable against all title holders out of possession. o Bare possessory title holder: In possession but not adversely (i.e. within limitation period). Contrast with having permission to be there from the owner - licence. A person who has been in possession of land for a sufficient duration of time acquires not only a possessory title, but also the right to defend himself against any action by the real owner. This defence is based upon time. If a person has been in possession of land for a sufficiently long period, the right of the real owner to dispossess that person is extinguished. This defence confers upon the true owner a right, the consequences of which are akin to proprietary title. Possessory title Possessory title is purely factual – based on the fact of possession rather than documentary proof of title as is the case with proprietary title. The law has generally protected possessory title and there are a number of reasons for this. o Asher v Whitlock (1865) LR QB 1 Adverse possession Adverse possession is a particular type of possession which incorporates both the physical act of possession and the intention to occupy the land in a manner akin to that of the paper title owner. Adverse possession must endure for the limitation period at which point the paper title owner will be precluded from enforcing their title on the basis of the limitations legislation.
Once established, it is only enforceable against the documentary owner who was entitled to possession but who has not exercised possessory rights for a sufficient period of time. Where effectively raised, adverse possession will preclude the documentary title holder from enforcing their title and in this sense operates as an absolute defence. Various policy rationales exist justifying the application of adverse possession including: o Protection of the legitimate expectations of an occupier of land; o Discouraging property owners from sleeping on their rights and ensuring that land remains well managed. Test for establishing adverse possession Adverse possession will arise where three requirements can be satisfied: o The possession has endured for the limitation period (different periods apply to different states). In Victoria the period is 15 years. Section 8 Limitation of Actions Act 1958 (Vic) The person entitled to possession must be out of possession. This can happen in two ways: Discontinuance – where the person in possession goes out and is followed into possession by another (abandonment). Dispossession – where a person comes in a drives out the other from possession. o The test for factual possession has been satisfied. The possession must be open, not secret, peaceful, not by force and adverse, not by consent of the true owner. Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 o The test for intention must be satisfied. It must be proven that the possessor intended to exclude the world at large, including the owner with the paper title. JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 o Without permission of the owner. Whittlesea City Council v Abbatangelo [2009] VSCA 188 Different periods of adverse possession may be added together to establish adverse possession in circumstances where multiple possessions have occurred. o The primary requirement is that the possessions be continuous and uninterrupted and that the possession has not been abandoned. o Temporary absences or short breaks in possession may not constitute abandonment. o Where the limitation period is acquired via a series of separate and independent possessions involving the wrongful possession of previous possessors, different principles apply. Kierford Ridge Pty Ltd v Ward [2005] VSC 215 Adverse possession may be suspended where a fraud has been committed against the paper title owner or where the paper title owner is subject to a fraud.
Once established, it is only enforceable against the documentary owner who was entitled to possession but who has not exercised possessory rights for a sufficient period of time. Where effectively raised, adverse possession will preclude the documentary title holder from enforcing their title and in this sense operates as an absolute defence. Various policy rationales exist justifying the application of adverse possession including: o Protection of the legitimate expectations of an occupier of land; o Discouraging property owners from sleeping on their rights and ensuring that land remains well managed. Test for establishing adverse possession Adverse possession will arise where three requirements can be satisfied: o The possession has endured for the limitation period (different periods apply to different states). In Victoria the period is 15 years. Section 8 Limitation of Actions Act 1958 (Vic) The person entitled to possession must be out of possession. This can happen in two ways: Discontinuance – where the person in possession goes out and is followed into possession by another (abandonment). Dispossession – where a person comes in a drives out the other from possession. o The test for factual possession has been satisfied. The possession must be open, not secret, peaceful, not by force and adverse, not by consent of the true owner. Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 o The test for intention must be satisfied. It must be proven that the possessor intended to exclude the world at large, including the owner with the paper title. JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 o Without permission of the owner. Whittlesea City Council v Abbatangelo [2009] VSCA 188 Different periods of adverse possession may be added together to establish adverse possession in circumstances where multiple possessions have occurred. o The primary requirement is that the possessions be continuous and uninterrupted and that the possession has not been abandoned. o Temporary absences or short breaks in possession may not constitute abandonment. o Where the limitation period is acquired via a series of separate and independent possessions involving the wrongful possession of previous possessors, different principles apply. Kierford Ridge Pty Ltd v Ward [2005] VSC 215 Adverse possession may be suspended where a fraud has been committed against the paper title owner or where the paper title owner is subject to a fraud.
