What constitutes adverse possession?
What constitutes adverse possession? -
-
-
-
Possession is SINGULAR and EXCLUSIVE – the true owner and the squatter cannot be possessing the land at the same time. If the squatter has gotten into possession, then by definition, the squatter has dispossessed the true owner of their land Courts are generally very willing to assume that the documentary owner has the best right to possession (prima facie) – the law will without reluctance ascribe possession to the documentary owner o Documentary owners with future plans for the house have not abandoned the land and are presumed in possession of the land – it is very difficult to prove that a true owner has discontinued possession (ie. Abandoned the land) Old English position o English courts, historically, did not like adverse possessors and bent over backwards to make it very hard for people to succeed at these claims o There was, at one point, a series of English cases which employed the ‘doctrine of implied licence’ Ie. Adverse possessors were not in possession, but were rather ‘licensees’ Where the true owner had future plans for the land, any squatters on the land at all would be considered to have received an implied licence o This was a mechanism created by Lord Denning because the English courts did not like the adverse possession concept o The implied licence doctrine was never applied in Australia and can now be shown that we cannot simply artificially ‘deem’ a licence The status of the inconsistent user doctrine - ‘if you’ve got land which is acquired or retained by a true owner for a specific use for the land, then the acts of the adverse possessor have to be inconsistent with that use in order for time to run’ (Leigh v Jack) o For a squatter, knowing that the true owner has a future use might damage their claim to possession
Factual control -
-
The acts of the adverse possessor must be visible and unconcealed so as to give the true owner the best chance of noticing the adverse possessor o Therefore, if it is being possessed by stealth, it may not be able to be considered adverse possession Must be peaceful and not by force o Does this mean if time is not running if a squatter kicks the true owner off the land by force?
Animus possidendi -
-
The intention to possess the land The facts which might show an intention of the adverse possessor/true owner to possess the land o It is not ‘casual use’ of the land – there must be a true intention to possess Eg. fencing, locks, cultivating farmland, occupying the residence on the land When courts speak of an exclusion of the world at large, there does not need to be a conscious intention to exclude the true owner – because the adverse possessor may not even realise that they are doing so
o
-
-
-
-
-
Eg. if adverse possessor doesn’t realise that they are encroaching on their neighbour’s land, they are still intending to exclude the rest of the world even if dispossession of the land is not known of Intention to exclude the true owner does not need to be ‘for all time’ – the squatter merely needs to have an intention to possess FOR THE TIME BEING o it doesn’t matter that the squatter would have paid the true owner if they had been asked to How do you prove animus possidendi in court? o Courts look to the acts of the adverse possessor themselves and whether they show an intention to exclude the true owner o Factual control and animus possidendi are separate Whether AP of part can constitute AP of the whole o Decided on a case by case basis Whether it matters that the documentary owner realises that he or she has been dispossessed o Provided that the acts of adverse possession are open and unconcealed, it doesn’t matter Buckinghamshire County Council v Moran [1989] 2 All ER 225 o NB; unlike Australia, UK had adverse possession of council property at that time o Council bought some land in 1955 To the west of the land was a hedge and to the south was a house, and the eastern boundary abutted a road To the northern side, there was a property called ‘Dolphin Place’ o The council placed a new fence and new gate into the eastern boundary The only way to get through to the council property you had to either go through the fence next to the road or through Dolphin Place o Moran purchased Dolphin Place The previous owners of the land maintained the land as if it were their own garden When Moran was sold the land, he was also sold a possessory title to the council plot o Moran had put a lock on the council gate which cut down access from the roadside o The council enquired to the Moran about why he was using the land like that, to which Moran said that he was told by the former owner that he could use the land until the council needed the land For another 10 years, the Council did not further enquire about possession, but at the end of that period the council issued a writ of possession to Moran o Issue; did Moran have adverse possession of the land? all Moran had to show that was that he had factual control and animus possidendi o Held; Moran did enough to show that he had an intention to possess the land and did so in a way which was obvious (factual control) he intended to exclude all other from it, including the council for the time being, he had this intention and it was the council’s fault that they had let it run for 12 years main reason – land was enclosed JA Pye (Oxford) v Graham [2003] 1 AC 419
o
-
Concerned two farmlands – Pye was a company which owned farmland next to Graham’s land o Pye was going to develop their 25 ha farm for residential use and were in the process of getting planning permission o In the meantime, Graham had received a grazing licence for a certain time period (which had expired) which allowed him to keep his lifestock on the land to graze The Pyes refused Graham’s request to renew the grazing licence (mainly because the grazing would jeopardise their chances of getting plannign permission) o However, Graham just kept using Pye’s land over a number of years Graham held the key to the only gate on Pye’s land Graham was never asked to pay rent but stated that he was willing to do so if he was asked o Pye went to court to remove Graham off the land, but Graham said that he had adverse possession of the land o Held; after the grazing licence expired, Grahams had adverse possession of the land Factual possession? Yes, dealt with the property as an occupying owner would have done. The fact that he would have paid for the property had he been asked did not vitiate his adverse possession Whittlesea City Council v Abbatangelo [2009] VSCA 18 o NB S 7B did not exist at the time – council land COULD be adversely possessed at this time o Council had been given some land in Mernda, originally to build a shire hall on it No construction even occurred because the construction occurred elsewhere and was essentially left as spare land o Abbatangelo’s purchased land to use as a hobby farm This land surrounded all the sides of the council’s land o Abbatangelos started using the land and said that they had AP because; They installed a gate between their land and the council’s land Maintained the fences around the council land without any financial contribution requests Used the land as a grazing area Weeded the area and waste removed o Used the land from 1958-2000 One of the glitches the council relied upon was that the Abbatangelos moved down to Geelong between 1970-1975 However, during that time they still came back to the land on weekends o What kicked off the law case was that Mrs Abbatangelo caught wind that councils could not be adversely possessed shortly o Held; Abbatangelos were held to be in adverse possession of the council’s land for more than 15 years without the council’s intervention There was factual possession of the land due to the Abbatangelo’s use of the land She had adversely possessed it openly and obviously While council argued that the appearance of the land had not changed, court stated that this was not necessary – it was still quite plainly obvious that the land was being possessed by the Abbatangelos Don’t have to show inconsistent use (CF Leigh v Jack)
-
-
-
Possession is SINGULAR and EXCLUSIVE – the true owner and the squatter cannot be possessing the land at the same time. If the squatter has gotten into possession, then by definition, the squatter has dispossessed the true owner of their land Courts are generally very willing to assume that the documentary owner has the best right to possession (prima facie) – the law will without reluctance ascribe possession to the documentary owner o Documentary owners with future plans for the house have not abandoned the land and are presumed in possession of the land – it is very difficult to prove that a true owner has discontinued possession (ie. Abandoned the land) Old English position o English courts, historically, did not like adverse possessors and bent over backwards to make it very hard for people to succeed at these claims o There was, at one point, a series of English cases which employed the ‘doctrine of implied licence’ Ie. Adverse possessors were not in possession, but were rather ‘licensees’ Where the true owner had future plans for the land, any squatters on the land at all would be considered to have received an implied licence o This was a mechanism created by Lord Denning because the English courts did not like the adverse possession concept o The implied licence doctrine was never applied in Australia and can now be shown that we cannot simply artificially ‘deem’ a licence The status of the inconsistent user doctrine - ‘if you’ve got land which is acquired or retained by a true owner for a specific use for the land, then the acts of the adverse possessor have to be inconsistent with that use in order for time to run’ (Leigh v Jack) o For a squatter, knowing that the true owner has a future use might damage their claim to possession
Factual control -
-
The acts of the adverse possessor must be visible and unconcealed so as to give the true owner the best chance of noticing the adverse possessor o Therefore, if it is being possessed by stealth, it may not be able to be considered adverse possession Must be peaceful and not by force o Does this mean if time is not running if a squatter kicks the true owner off the land by force?
Animus possidendi -
-
The intention to possess the land The facts which might show an intention of the adverse possessor/true owner to possess the land o It is not ‘casual use’ of the land – there must be a true intention to possess Eg. fencing, locks, cultivating farmland, occupying the residence on the land When courts speak of an exclusion of the world at large, there does not need to be a conscious intention to exclude the true owner – because the adverse possessor may not even realise that they are doing so
o
-
-
-
-
-
Eg. if adverse possessor doesn’t realise that they are encroaching on their neighbour’s land, they are still intending to exclude the rest of the world even if dispossession of the land is not known of Intention to exclude the true owner does not need to be ‘for all time’ – the squatter merely needs to have an intention to possess FOR THE TIME BEING o it doesn’t matter that the squatter would have paid the true owner if they had been asked to How do you prove animus possidendi in court? o Courts look to the acts of the adverse possessor themselves and whether they show an intention to exclude the true owner o Factual control and animus possidendi are separate Whether AP of part can constitute AP of the whole o Decided on a case by case basis Whether it matters that the documentary owner realises that he or she has been dispossessed o Provided that the acts of adverse possession are open and unconcealed, it doesn’t matter Buckinghamshire County Council v Moran [1989] 2 All ER 225 o NB; unlike Australia, UK had adverse possession of council property at that time o Council bought some land in 1955 To the west of the land was a hedge and to the south was a house, and the eastern boundary abutted a road To the northern side, there was a property called ‘Dolphin Place’ o The council placed a new fence and new gate into the eastern boundary The only way to get through to the council property you had to either go through the fence next to the road or through Dolphin Place o Moran purchased Dolphin Place The previous owners of the land maintained the land as if it were their own garden When Moran was sold the land, he was also sold a possessory title to the council plot o Moran had put a lock on the council gate which cut down access from the roadside o The council enquired to the Moran about why he was using the land like that, to which Moran said that he was told by the former owner that he could use the land until the council needed the land For another 10 years, the Council did not further enquire about possession, but at the end of that period the council issued a writ of possession to Moran o Issue; did Moran have adverse possession of the land? all Moran had to show that was that he had factual control and animus possidendi o Held; Moran did enough to show that he had an intention to possess the land and did so in a way which was obvious (factual control) he intended to exclude all other from it, including the council for the time being, he had this intention and it was the council’s fault that they had let it run for 12 years main reason – land was enclosed JA Pye (Oxford) v Graham [2003] 1 AC 419
o
-
Concerned two farmlands – Pye was a company which owned farmland next to Graham’s land o Pye was going to develop their 25 ha farm for residential use and were in the process of getting planning permission o In the meantime, Graham had received a grazing licence for a certain time period (which had expired) which allowed him to keep his lifestock on the land to graze The Pyes refused Graham’s request to renew the grazing licence (mainly because the grazing would jeopardise their chances of getting plannign permission) o However, Graham just kept using Pye’s land over a number of years Graham held the key to the only gate on Pye’s land Graham was never asked to pay rent but stated that he was willing to do so if he was asked o Pye went to court to remove Graham off the land, but Graham said that he had adverse possession of the land o Held; after the grazing licence expired, Grahams had adverse possession of the land Factual possession? Yes, dealt with the property as an occupying owner would have done. The fact that he would have paid for the property had he been asked did not vitiate his adverse possession Whittlesea City Council v Abbatangelo [2009] VSCA 18 o NB S 7B did not exist at the time – council land COULD be adversely possessed at this time o Council had been given some land in Mernda, originally to build a shire hall on it No construction even occurred because the construction occurred elsewhere and was essentially left as spare land o Abbatangelo’s purchased land to use as a hobby farm This land surrounded all the sides of the council’s land o Abbatangelos started using the land and said that they had AP because; They installed a gate between their land and the council’s land Maintained the fences around the council land without any financial contribution requests Used the land as a grazing area Weeded the area and waste removed o Used the land from 1958-2000 One of the glitches the council relied upon was that the Abbatangelos moved down to Geelong between 1970-1975 However, during that time they still came back to the land on weekends o What kicked off the law case was that Mrs Abbatangelo caught wind that councils could not be adversely possessed shortly o Held; Abbatangelos were held to be in adverse possession of the council’s land for more than 15 years without the council’s intervention There was factual possession of the land due to the Abbatangelo’s use of the land She had adversely possessed it openly and obviously While council argued that the appearance of the land had not changed, court stated that this was not necessary – it was still quite plainly obvious that the land was being possessed by the Abbatangelos Don’t have to show inconsistent use (CF Leigh v Jack)
