Adverse Possession



4.1   The nature of adverse possession

Possessory title confers a good title upon the holder and is enforceable against the entire world except for the true owner. In some cases, however, possessory title over land can be held for such a long period of time that the true owner is precluded under the limitations of actions legislation from bringing an action to recover possession of that land. Such a prohibition effectively results in the possessor acquiring what is called an ‘adverse possession’ of the land. There are a number of justifications for imposing a limit upon the length of time that land owners may take in exercising their proprietary rights when dispossessed, the first and most important being that it is in the public interest to encourage certainty and predictability in land ownership. Where a person has taken possession of land to the exclusion of the real owner, and made that land his home for a significant period of time without interruption, the possessors should be entitled to a certain peace of mind. If the owner has failed to enforce proprietary title against such possessors, whether it be due to negligence or mere tardiness, public interest requirements favour the possessor against the owner so that the owner loses the right to regain possession. This reasoning is well highlighted in the classic words of Sir Thomas Plumer MR in Marquis Cholmondeley v Lord Clinton (1820) 2 Jac & W 1; 37 ER 527, p 577: ‘It is better that the negligent owner who has omitted to assert his right within the prescribed period should lose his right than that an opening should be given to interminable litigation.’

The second justification underlies the whole premise of imposing limitations upon legal actions: it is desirable that the possibility of litigation should not loom indefinitely. There should be a period when the right to bring an action ceases. Such time restrictions are beneficial in two significant ways: they tend to encourage prompt action, so reducing the possibility of evidential uncertainties, and they prevent the courts from being clogged up with outdated suits.

Finally, and perhaps most importantly, the law should not be seen to thwart the legitimate expectations of occupants. To allow a possessory title holder to be defeated by a true owner after years of occupying and developing the land as his home, paying rates and looking after or improving the land, would be patently unfair and would undoubtedly cause significant hardship. In balancing the competing considerations, the policy has always been to protect the interests of a patient possessor against those of a tardy owner.1

Where the limitation period has expired and the possessor acquires adverse possession of the land, the title of the true owner is effectively extinguished and the rights usually associated with ownership are no longer enforceable. The possessor attains a form of ownership, not through the positive conferral of proprietary title, but rather through the extinguishment of the true owner’s right to claim repossession of the land.

4.2   Statutory provisions

The limitation period which applies to the enforcement of rights over land varies amongst the states. In Victoria and South Australia, the period is 15 years.2 In New South Wales, Western Australia, Tasmania and Queensland, the limitation period for land is 12 years.3 The limitation periods in each of these states remain current.

Where adverse possession is sought to be enforced against Crown land, there are different provisions in each state. It is only in Tasmania and New South Wales that adverse possession can actually be claimed against the Crown, and in these states the limitation period is 30 years.4 In Tasmania, however, adverse possession may not be claimed against the Crown in particular circumstances, including cases where land has been compulsorily acquired for council purposes. In Victoria, Western Australia and Queensland, adverse possession cannot be raised against the Crown at all.5 Where the Crown transfers land to an individual, the limitation period may commence, and in Victoria, the period will be 15 years from the date of the transfer.6 Where there are no specific provisions dealing with Crown lands, it would seem that the Crown Suits Act 1769 (Imp) will apply, and this states that the Crown may be barred by adverse possession after a period of 60 years.

The reason for conferring special provisions for adverse possession against Crown land lies in the fact that the Crown owns large amounts of land, and it is difficult and time consuming to keep up to date with the state of these lands. In order to prevent large pieces of land being claimed by adverse possession, statute either prohibits its application or greatly extends the limitation period.

4.3   When the limitation period commences

Most legislative provisions set out that the limitation period will commence at the point when the owner has been either dispossessed or has discontinued possession and a third person has taken up actual possession. Dispossession is used to imply a physical ejection from the land by the possessor, whereas discontinuance suggests that an owner has discontinued possession and a third party has subsequently assumed possession. If an owner holds a future right over land, the limitation period can only begin to commence against that person once the right to possession has vested.

For example, if X passes on all of her estate and property to Y in her will, the limitation period will commence against Y as soon as X dies and probate is administered. In Victoria, if an occupier remains on the estate for a period of 15 years from the date of X’s death, the occupier may claim adverse possession.

Dispossession implies an act of force. Generally, owners who have been dispossessed have not done so of their own accord but, rather, have been forcibly removed. It is quite rare to raise adverse possession on the basis of a dispossession, because, in such a case, the owners are usually well aware of the fact that a third party has taken possession of their property and act promptly to enforce their rights. More commonly, adverse possession will arise where the true owner has discontinued his possession leaving the land vacant and thereby making it possible for a third person to take possession: Rains v Buxton (1880) 14 Ch D 537.

For example, X holds a fee simple over rural land in Victoria and decides to move out of the property, leaving it vacant, in 1980. Y discovers the land and subsequently moves in, taking control of the property, in 1982. In 1997, X brings an action for recovery of the land against Y. However, Y claims adverse possession. In this example, the limitation period will commence in 1982, because this is the year when Y assumed possession of vacant land. Provided it can be proven that Y’s possession is adverse, by 1997 Y will acquire a possessory title which cannot be defeated by X.

If an owner of land, who has been dispossessed, or who has discontinued possession, passes the land on to a third party assignee, the third party will be in the same position as the previous owner. Hence, the third party assignee will take the land subject to the accrued possessory rights of the adverse possessor.7

The courts have not focused upon a strict determination of the meaning of dispossession or discontinuance in the legislative provisions, as the primary consideration has been the determination of whether the possession is ‘adverse’ in the circumstances. Nevertheless, it is important to establish the starting date in order to ensure that the appropriate time period has expired. The limitation period commences not just from the date of discontinuance or dispossession, but from the date when, as a result of either of these states, a third party ‘adversely’ possesses the land.

4.3.1   The meaning of adverse possession

Adverse possession refers to a particular form of land possession which must be distinguished from mere occupation. In order to establish adverse possession, it must first be established that the individual has, in fact, taken possession of the land and that this possession demonstrates a degree of physical control that is open rather than secret, peaceful rather than forceful, and without the actual consent of the true owner (Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464, particularly p 475). Furthermore, it must be established that the person in occupation actually intended to possess the land adversely (Riley v Pentilla [1974] VR 547). It is important to establish the requisite intention or animus possidendi, because an accidental or unintentional possession will not constitute an adverse possession. The determination of these factors forms the foundation of an adverse possession claim. The mere fact that an individual has occupied land for the specified limitation period is not enough to permanently preclude the rights of the true owner. The significant consequences of an adverse possession claim upon the true owner, make it vital that the possession in issue be proven to be ‘adverse’ rather than merely fortuitous.

The acquisition of title by way of adverse possession must be distinguished from the acquisition of title through long standing use. This corresponds with the distinction between prescription and limitation. Title by prescription confers the right to possession where the possessor has used the land continually for a period of at least 20 years, whereas title by limitation may be described as a wrongful possession which, due to its character and length, precludes the true owner from enforcing his or her rights (Buckinghamshire CC v Moran [1989] 2 All ER 225). Unlike prescriptive rights, where a person acquires an actual right to possession, and the focus is upon the acts and intention of the true owner, under limitation, the conduct and intention of the possessor is the decisive factor in the determination. For a further discussion on prescriptive rights, see Chapter 13, at para 13.4.5.

4.3.2   Factual possession

A possessor must prove that he or she has satisfied the requisite degree of physical possession over the land. It must be proven that the possessor has actually taken control over the entirety of the land and that this control is apparent and contrary to the consent of the true owner. As noted by Slade LJ in Powell v McFarlane (1977) 38 P & CR 452, pp 470–71:

Factual possession signifies an appropriate degree of physical control. It must be a single and exclusive possession…an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.

Clearly, if the true owner has given permission in the form of a licence or a lease for a person to be in possession of the land, the possession cannot constitute adverse possession (Hughes v Griffin [1969] 1 WLR 23). The limitation period for adverse possession may only commence where the permission has either ceased or has been withdrawn and the person remains in possession without consent.

Furthermore, the possession must amount to more than a mere occupation of the property. The possessor must prove that he or she has possessed the property in a manner which is directly inconsistent with the rights of the true owner. The occasional use of land, for example, as a convenient short cut or for other recreational purposes will not constitute adverse possession where it is not inconsistent with and does not interfere with the purpose for which the true owner intended to use the land (Leigh v Jack (1879) 5 Ex D 264). The question of the requisite degree of physical control was raised in George Wimpey and Co Ltd v Sohn [1967] Ch 487. On the facts of that case, the issue was whether or not the applicant had adversely possessed a hotel garden. The applicant was the purchaser of the hotel adjacent to the garden and, along with neighbouring lots, acquired an easement over the hotel garden when the hotel was initially purchased. The garden was subsequently fenced completely in order to protect it from the public, but not to exclude the rights of the easement holders. The Court of Appeal held that the fencing was insufficient to constitute adverse possession because it was erected as a safeguard from the public and, as the easement holders retained access, was not inconsistent with their rights.

In some instances, however, the fencing of land may be sufficient to constitute adverse possession. For example, in Buckinghamshire CC v Moron [1989] 2 All ER 225, the defendant owned a block of land and the plaintiff council owned the adjacent block. The defendant had used the council land by enclosing it with a fence and a locked gate over the only access to the land and parking a horse float on the land. The defendant effectively used the land as an extension of his own land. The court held that the defendant, by fencing off the land, had gained full physical control over the land to the exclusion of the true owner. Consequently, at the expiration of the limitation period, the defendant was able to claim adverse possession over the land.

Factual possession may not be raised in circumstances where, despite a clear possession of the land in issue, it is not directly inconsistent with the purposes for which the owner uses the land. For example, where land is used to graze livestock and a neighbouring person’s livestock roams onto the land to feed, the intrusion will only interfere with the owner’s purposes where the amount of livestock is so great that it effectively displaces the existing livestock (Powell v McFarlane (1977) 38 P & CR 452, especially p 478). If the owner of land is not using it for any present purpose but has future plans, a person may take full possession of the land during this period, and it will not constitute adverse possession until the future date is reached. For example, in Leigh v Jack (1879) 5 Ex D 264, the defendant’s acts of placing garbage onto the plaintiff’s land, which was intended to be developed in the future as a roadway, did not constitute a factual possession of the land. In the words of Cockburn CJ in that case:

I do not think that any of the defendant’s acts were done with the view of defeating the purpose of the parties to the conveyances; his acts were those of a man who did not intend to be a trespasser, or to infringe upon another’s right. The defendant simply used the land until the time should come for carrying out the object originally contemplated.

Of course, what this meant was that where an owner of land has no present purpose for the land—only future plans—the land cannot be adversely possessed prior to these plans being instigated. Older English decisions concluded mat this was a desirable result because, in such circumstances, the owner had effectively conferred implied permission to the possessor and, consequently, the possession was not adverse (Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94). Subsequent legislation abrogates the ‘implied permission’ line of authority (Sched 1, para 8(4) of the Limitation Act 1980 (UK)) and the tenor of recent cases has also moved away from it (Powell v McFarlane (1977) 38 P & CR 452). Exactly what constitutes an act of adverse possession will depend upon the individual circumstances. The type of acts, the extent of the occupation and the degree of inconsistency necessary to constitute adverse possession will vary in each case. Despite earlier authority, recent cases are no longer stringently adhering to the rule that acts of possession must be directly inconsistent with the purpose for which the owner intends to use the land. In Quach v Marrickville Municipal Council (Nos 1 and 2)