The principle of indefeasibility (the State guarantee as to ownership of land) applies only to Torrens title land. Ownership of Old System title is certain only if another person with a better claim cannot be established. Adverse possession is a legal principle that enables a trespasser (or adverse occupier) who has been allowed uninterrupted and exclusive possession of land for a period of time, to displace the registered owner.
Pursuant to the Limitation Act 1969, possession must be continual and uninterrupted for a period of 12 years in NSW. Further, possession must be exclusive physical control, to the exclusion of the legal owner and in the case of Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464, it was held that possession must be “open, not secret; peaceful, not by force; and adverse, not by consent of the true owner”.
Adverse Possession is hard to establish but particularly so as between fellow members. The elements enumerated in Mulcahy v Curramore suggest that exclusivity of physical control would require a ring fencing of property of sorts, such as the construction of a fence surrounding property. The lodging of a caveat against property could evince intention to exert control. Furthermore, the presumption favoured by the courts in familial property disputes is that members of the same family do not infringe upon one another’s rights. More often than not, permission to occupy a property is granted at least at the outset, by one family member to another. That may change at a later stage but unless the family member who later becomes an adverse occupant, can establish that such permission had not been allowed for a period of at least 12 years, they will fail to establish adverse possession.
Tips
- Do not allow family members to build on family land, unless a written agreement is in place regarding what happens when the land is to be sold; and
- seek advice from a lawyer if you believe someone may claim adverse possession over your land.
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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.