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Adverse possession / Possessory title - squatter’s right
Limitation Act 1969 (NSW)
● when does time begin to run:
S 27 General - the period of possession required to bar the title of persons
(1) An action on a cause of action to recover land is not maintainable by the Crown if
brought after the expiration of a limitation period of thirty (30) years running from the date
on which the cause of action first accrues to the Crown or to a person through whom the
Crown claims.
(2) Subject to subsection (3) an action on a cause of action to recover land is not
maintainable by a person other than the Crown if brought after the expiration of a limitation
period of twelve(12) years running from the date on which the cause of action first accrues
to the plaintiff or to a person through whom the plaintiff claims.
(3) Subsection (2) does not apply to an action brought by a person claiming through the
Crown and brought on a cause of action which accrues to the Crown.
● Although s 13.1 of Crown Land Management Act 2016 NSW (prevail)
(1)title based on adverse possession cannot be claimed against the Crown for:
(a) Land of the Crown that has been: (i) set out as a road; (ii)left b/w Crown grants for
use as a road; (iii) reserved in a Crown grant.
(b) Any land of the Crown dedicated under Crown Land Acts or other Act f or a public
purpose;
(c) Any other Crown land eg. land that has been sold or lawfully contracted to be sold of
which the purchase price/other consideration has been received by the Crown.
S 28 first Accrual - dispossession or discontinuance
Where the plaintiff in an action on a cause of action to recover land or a person through
whom the plaintiff claims:
(a) has been in possession of the land, and
(b) while entitled to the land, is dispossessed or discontinues his or her possession,
the cause of action accrues on the date of dispossession or discontinuance.
“Dispossessed”
J A Pye v Graham 2003: english case
“There will be a “dispossession” of the paper owner in any case where a squatter “assumes
possession”(factual + intention) in the ordinary sense of the word. Except in the case of joint
possessors(both have factual possession and intention), possession is single and exclusive.
Therefore if the squatter is in possession the paper owner cannot be. Vice versa
“Dispossession” = person coming onto the land and driving out another
“Discontinuance” = person in possession going out and being followed in by another.
S 29 Accrual - deceased in possession
Where a DO dies, their estate is frozen and must be dealt with under laws under will and
intestacy, if a person claims to be entitled to an interest in possession assured by will or
intestacy, and the deceased was in possession at the date of death →
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Cause of action accrues on the date of the death of the deceased, provided no other
persons are entitled to the property (such as a tenant, so Gertos case not governed by s 29)
S 30 Accrual - grant/convey of interest(other than will) in possession
Where:
(a) the interest claimed in a cause of action to recover land is an interest assured under an
instrument (other than will, such as a lease, conveyance) to the plaintiff,
(b) the person making the assurance is, on the date when the assurance takes effect, in
possession by virtue of the estate or interest claimed, and
(c) no person is, after the date on which the assurance takes effect and before the date on
which the action is brought, in possession by virtue of the estate or interest claimed and by
virtue of the assurance, the cause of action accrues on the date on which the assurance
takes effect(eg. conveyance).
S 31 Accrual - future interest
Where the plaintiff claims to be entitled to a future interest:
(a) the estate or interest claimed in an action on a cause of action to recover land is at any
time an estate or interest in reversion or remainder or any other future estate or interest, and
(b) no person is, at any time after the date on which the estate or interest claimed
becomes a present estate or interest and before the date on which the action is brought, in
possession by virtue of the estate or interest claimed,
the cause of action accrues on the date on which the estate or interest claimed becomes a
present estate or interest.
Eg. remainderman: an AP dispossessed the life tenant and remained in possession for 12
years(meaning life tenant’s right and title is barred), without yet obtaining a title good against
the remainderman, but the remainderman’s interest to recover land survives until 12 years
after life tenant’s death (at which remainder interest becomes present)
Eg. lease: a tenant’s cause of action to recover land from an AP is barred 12 years after the
AP taks possession. But time does not begin to run against the landlord until the term of the
lease expires, nor is the person claiming through the landlord. So if at any time before the
landlord’s interest is barred, the landlord grants a new lease, the tenant under new lease can
evict the adverse possessor.
● Effect of expiration of limitation period
Limitation Act 1969 (NSW) s 65:
(1) the title of a person formerly having the cause of action to the property specified
opposite the cause of action in column 2 of that Schedule is, as against the person against
whom the cause of action formerly lay and as against the person’s successors, extinguished.
Ie. At the end of 12 years, the adverse possessor’s title becomes absolute. The statute
extinguishes documentary owner’s title, as well as all rights that owe their existence to doc
owner’s title.
- where a possessory title is acquired by two or more persons occupying the land
together → they acquire ownership as joint tenants.
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—-------------------------------------the above provisions are starting point —----------------------------
● Suspension of cancellation of time
S 52 Disability
(1) Subject to subsections (2) and (3) and subject to section 53, where:
(a) a person has a cause of action,
(b) the limitation period fixed by this Act for the cause of action has commenced to run,
and
(c) the person is under a disability,
in that case:
(d) the running of the limitation period is suspended for the duration of the disability,
(e) if the period would otherwise expire within 3 years after DO ceases to be under disability,
the period extends to allow a full 3 years after disability ceases.
(2) This section applies whenever a person is under a disability, whether or not the person is
under the same or another disability at any time during the limitation period.
S 11 definitions (3) For the purposes of this Act a person is under a “disability”:
(a) while the person is under the age of eighteen years, or
(b) while the person is, for a continuous period of twenty-eight(28) days or upwards,
incapable of, or substantially impeded in, the management of his or her affairs in relation to
the cause of action in respect of the limitation period for which the question arises, by
reason of:
(i) any disease or any impairment of his or her physical or mental condition,
(ii) restraint of his or her person, lawful or unlawful, including detention or custody under
the Mental Health Act 1958,
(iii) war or warlike operations, or
(iv) circumstances arising out of war or warlike operations.
S 54 Confirmation -after a limitation period commences to run but before the expiration, the
trespassers “confirms” the cause of action, the time ceases to run = cancelled.
*a confirmation cannot revive a documentary title that has already been extinguished.
* confirmation must be made to the person enjoying the benefit of it - the doc owner
* if continues to possess after confirmation, time resets and run from scratch: s 54meaning
life tenant’s right and title may have been barred
[examples of confirmation under s 54]
-
An acknowledgement of the right or title of the true owner: (2)(a)(i); must be in writing
and signed: s54(4)
Makes payment to the person with cause of action: (2)(a)(ii)
Admits doc owner’s title in proceedings for possession or to recover principal money
or to recover income falling due: (2)(b), (c)
Requests a lease
Requests an exemption from the liability to pay rent
Ask the doc owner to pay contribution towards rates
AP offers to purchase the land, although unlikely to be confirmation if genuine effort
to seek resolution to the dispute, using words ‘without prejudice’
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S 55 Fraud and deceit
Where the documentary owner’s cause of action is based on fraud or deceit, or the identity
of the adverse possessor, is fraudulently concealed, time does not begin to run until the
documentary owner first discovers the fraud, or could reasonably have been discovered.
- Does not matter whether the concealment occurs at the same time as the right to
recover land first accrues, or some time after.
- sub-s(3)The person is answerable to the fraud, deceit or concealment only if (a)the
person is a part to the fraud or (b) a successor of a party to the fraud.
- sub-s(4) this fraud exception does not apply to a cause of action against bona fide
purchaser for value without fraud after the first occurrence of fraud.
“Fraud”: in NSW, for the purpose of this section, fraud is not confined to common law fraud,
but does require ‘a consciousness that what is being does in wrong’: Seymour v Seymour
S 51 Ultimate bar: might be suspended for a few years now and then, but can’t exceed
30 years running from the date from which the limitation period for that cause of action first
accrues.
● Criteria of Adverse possession (must meet all 3)
1. a sufficient degree of physical custody and control (factual possession)
2. intention to exercise such custody and control on one’s own behalf and for one’s own
benefit (intention to possession)
3. such physical custody is (open, not secret; peaceful, not by force, or anything
unlawful; and adverse, not by consent of the true owner): Mulcahy v Curramore.
*when you start taking possession of a land, you start having a property right (possessory
interest), after expiration, the possessory title becomes absolute.
[onus] is on the possessor even if the plaintiff is the documentary owner, needs to satisfy
the ordinary civil standard of proof - on the balance of probabilities.
● Factual possession
Powell v McFarlane 1977 “factual possession”
[Slade J]​​the question of what constitutes factual possession (a sufficient degree of exclusive
physical control) depends on the circumstances, in particular the nature of land and the
manner in which land of that nature is commonly used/enjoyed. It Must be a single and
exclusive possession (though can be a single possession exercised by several persons
jointly). The alleged possessor has been dealing with the land in the manner as
owner/landlord might have been expected to deal with it, and that no-one else has done so.
-
No need to improve, or make changes to the usage or physical characteristic the
land(although improvement of residence on land is relevant), just use and control,
nothing more nothing less: Whittlesea City Council
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-
No need for ‘confrontation, aggression, hostility or subterfuge’, only need to have
‘gone into ordinary possession of the land for the requisite period without consent of
the owner’: JA Pye v Graham
[Examples that amount to factual possession]
•leasing out property to tenant
oMcFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629
•paying local council rates (and other taxes), esp when very large land, impractical to control
entire land
oMcFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629
oKirby v Cowderoy [1912] AC 599
•fencing area - insufficient, also needs intention to exclude all others
oWhittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188
oCf. Kirby v Cowderoy [1912] AC 5
oCf. Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
•pavement of the land - insufficient, also needs intention
oBraye v Tarnawskyj (2019) 19 BPR 39,213; [2019] NSWSC 277
oSidoti v Hardy [2021] NSWCA 105
•Landscaping of the land - insufficient of itself
oSidoti v Hardy [2021] NSWCA 105
● Intention to possess
J A Pye v Graham 2003 “Intention to Possess”
Can’t be trespasser only using the land, Requiring an ‘intention, in one's own name and on
one's own behalf, to exclude the world at large, including the owner with the paper title if he
is not himself the possessor, so far as is reasonably practicable and so far as the processes
of the law will allow’.
- No need to show an intention to ‘own’ the land, although it might be present.
Once necessary intention is present, it is irrelevant and does not avail the doc owner that the
AP:
- Mistakenly believed that AP owned the land or was in possession as tenant of land
- Tenant fully aware the possession was wrongful
- AP would have been willing to / prepared to pay for use of the land had payment to
paper owner been sought: JA Pye
So a co-owner who occupies the property to the exclusion of other co-owners may acquire a
possessory title.
The intent speaks for itself, for it can be deduced from the physical acts that point
unequivocally to an assertion of possession. No need to adduce additional evidence of
(subjective) intention: JA Pye; Wogama v Harris.
Acts which are equivocal (appear consistent equally with intent to exclude, as well as intent
merely to derive some enjoyment from land) are “useless” → proof of “actual” intention
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becomes essential. However , a number of equivocal acts together will form the requisite
intention: Whittlesea city Council.
● fence
The act of erecting and maintaining fences around the land is usually strong evidence of
occupation with the intent to exclude all others: Re Riley
Enclosing area of land with a fence prima facie indicate strong and sufficient intention:
Seddon v Smith 1877 However,
[Insufficient intention]
1. Merely to use the land for personal convenience with no intent to exclude all others:
Permanent Trustee Co Ltd v Pangas 1992
2. Possessor fences the area claimed (a garden) with intention of excluding general
public but not the documentary owner: George Wimpay v Sohn 1967
3. Fenced off for use as tennis court and garden an area of communal park, without
intending to exclude others who are entitled to enjoy it in common with the
possessor: Riley v Penttila
4. Fenced area for convenience of penning in own sheep: Inglewood Investment v
Baker 2003
5. Squatter aware of a special purpose for which the doc owner uses the land, and uses
it in the same way → supports finding that no intention to possess, only occupy until
needed by paper owner: JA Pye.
a. If paper owner has no present use of the land, but is merely holding for a
future use and the the squatter knows it → difficult to prove ‘intention to
possess’: JA Pye
6. Established a laneway where the possessor used it as an access way to his property
but also allowed others to use it and requested local council to surface it: Weber v
Ankin.
7. Fence only part of land, no ouster: Higgs
8. Fencing and running cattle = insufficient, bc only did so to ensure cattles not run
away: Findlay
9. Simply owning fee simple and having possession ≠ sufficient, no attempt to use or
take minerals: Payne
10. Cultivation of land, running cattles or horses on land(equivocal, merely devise
enjoyment), large unfenced virgin land, simply walking past once a week and warn
people off, occasionally received small payments to cut timber = insufficient : Harnett
v Green
[Sufficient intention to possess]
1. Build and maintain fences, conduct business and picnics on land: Re Riley
2. Payment of rates and taxes: Kirby (by m’ee), Quach v Marrickville Municipal Council
a. But non-payment is not fatal to claim where the AP wants to pay but found the
true owner had already paid
3. Put survey pegs on 4 corners of the unfenced land: Watu-OfeiDanguah
4. Remained o land after expiry of licencing agreement for farming activities: JA Pye
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5. Improving residence or other building on the land, but not of itself conclusive, needs
to be coupled with other factors: O’Neil v Hart.
● Possession of “PART” of land
Acts of possession done on parts of a trace of land may be evidence of possession of the
whole: Higgs v Nassauvian Ltd
In appropriate circumstances, adverse possession may continue despite intervals and
sometimes long intervals eg. possession of arable land may continue even though farming
stops during winter months: Bligh v Martin.
● Acquisition by tenants
[general principle] a tenant, while in possession under a lease, has no adverse possession
against the landlord because with landlord’s permission and not permitted to deny landlord’s
title.
- If tenant encroached on adjoining land belonging to 3rd party, any possessory title
will be acquired on the landlord’s behalf.
- If tenant occupies land belonging to landlord but not under the lease, then after
expiry of limitation period, the land is presumed to be held under the lease, and must
be yielded-up to the landlord after lease expires.
WEEK 2 - 1
“Open” = possession that would be noticed by a documentary owner reasonably careful of
his or her interests: Re Riley
“Peaceful” = the possession is done peaceful and not by force, not violent;
eg. doc owner is frightened to take legal proceedings to evict the possessor: Mulcahy v
Curramore
“Permission” =without permission or consent of the documentary owner (whether by law or
equity), possession is done without a legal basis
- Time cannot begin to run who take possession as a tenant by lease or as a licensee,
or as a caretaker or bailiff.
- If permission is later revoked, time begins to run from the date of the revocation. Eg.
where a purchaser is in possession with vendor’s permission, only becomes adverse
when the vendor either expressly withdrawals it or until it becomes clear that the sale
is not going to proceed ie. when the contract is rescinded/ terminated/ abandoned.
- If permission is given during the limitation period, time stops running and the benefit
of all time accrued to that date is cancelled.
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“No consent” = no consent, express or implied, by the documentary title owner to possess
the land.
Roy v Lagona 2010: foster daughter not officially adopted, possession was adverse.
● Abandoning possession
[general principle] time ceases to run against the documentary owner if the adverse
possessor abandons possession. From the moment of abandonment, the true owner’s title is
completely restored.
- Mere non-use is not conclusive evidence of abandonment.
- AP’s abandonment after the limitation period has expired will not avail the
documentary owner because by then the doc title has been distinguished.
[examples of non-abandonment]
- Ceases to physically occupy farmland in unworkable conditions eg. winter or after
drought
- In between tenants
- AP has moved to another area but returns regularly to maintain the use of land.
● A series of adverse possessors - successive trespassers
2 main ways:
1. Convey (transfer) or devise (leave to sb by will)
Mount Carmel Investments v Peter Thurlow 1988 : An AP’s interest in land is a
recognisable proprietary interest that is capable of being assured to other persons (eg.
assigned by contract or by a will). And these subsequent possessors will aggregate the time
of the previous possessor.
- In this assurance case, the paper owner’s title is extinguished as against the person
in possession of the land at the expiry of the imitation period.
2. Relinquish (give up)
If a trespasser occupies certain land and leaves, then another trespasser occupies that land,
1st trespasser’s duration of possession can be “tacked onto” the 2nd trespasser’s
possession, notwithstanding there is no formal assurance or assignment b/w the successive
psosessors.
- In this successive trespasser context, it is the first person in possession who acquires
the best title as against the doc owner. The person in possession at the time of the
expiry of limitation period has an inferior title to the earlier trespasser(s): Mulcahy v
Curramore Pty Ltd [1974]
Roy v Lagona 2010: foster daughter not officially adopted, possession was adverse.
[court] the possession by the successive trespassers must have been continuous. If during
the limitation period, the land ceases to be in adverse possession(one year gap here ≠
sufficient continuity), the benefit of all prior periods is cancelled, cannot be added to
subsequent AP, and the documentary owner’s title is resorted to its pristine force.
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S 38 series of adverse possession by different persons can be aggregated
Despite the above provision,
(1) Where, on the date on which, under this Act, a cause of action would, but for this
section, accrue, the land is not in adverse possession, the accrual is postponed so that the
cause of action does not accrue until the date on which the land is first in adverse
Possession.
(2) cumulative Subject to subsection (3), where a cause of action accrues to recover land
from a person in adverse possession of the land, and the land is afterwards in the adverse
possession of a second person, whether the second person claims through the first person
or not(ie. Whether successive or independent trespassers), the cause of action to recover
the land from the second person accrues on the date on which the cause of action to recover
the land from the first person first accrues to the plaintiff or to a person through whom the
plaintiff claims.
[starts counting from the first squatter entered into possession, meaning if subsequent
trespassers enter into possession soon after and the 1st squatter has no intention to come
back, their periods of possession can be cumulative]
(3) continuous Where a cause of action to recover land accrues and afterwards, but
before the cause of action is barred by this Act, the land ceases to be in adverse
possession(eg. AP abandons possession), for the purposes of this Act:
(a) the former adverse possession has no effect, and
(b) a fresh cause of action accrues on, but not before, the date when the land is first
again in adverse possession.
(5) Where land is held by joint tenants or tenants in common, possession by a tenant of
more than his or her share, not for the benefit of the other tenant, is, as against the other
tenant, adverse possession.
[where one tenant decides to exercise right over the land more than his/her fair share - hard
to prove]
○ Independent trespassers (not claiming thru OG AP)
A series of trespassers take possession wrongfully, not only against the documentary owner
but also against each other. Their possession must have been sufficiently CONTINUOUS.
If during the period, land ceases to be in adverse possession = abandonment → time stops
running.
Eg. A, B, C, D and E have been in adverse possession independently but cumulatively for
the limitation period. At the end, A will acquire the title goog against the world. B will acquire
the title good against the world but A……E will acquire the title good against the world
except A, B, C and D: Mulcahy v Curramore.
But there can be circumstances in which A gave up possession shows that A abandoned
their rights as against the succeeding trespasser B = “qualified abandonment”(time does
not stop running, then E could successfully resist A, only against B, C, D) Vs “ordinary
abandonment” (time stops running)
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-
-
The key is to determine whether each succeeding possessor took possession
wrongfully as against his predecessor (predecessor retains a higher right than
successor) OR succeeding trespasser entered immediately following a qualified
abandonment: Mulcahy v Curramore.
Example of “qualified abandonment”: where AP is the vendor of an adjacent lot, and
no formal assignment of the possessory title upon transfer of lot to new owner.
● Recovery of possession by the documentary title owner
The documentary title owner can stop the limitation period from running by recovering
possession of the land by 2 ways:
1. Commencing proceedings for possession of land (can drop the proceeding the
next day, still sufficient): Shaw v Garbutt 1996;
a. In AUS, all required is the issue and service of a summons for possession
with the intention of obtaining an order for possession: Shaw, Symes
b. Where the action is commenced within the 12 year period, the AP’s rights are
terminated, even tho the judgement may not be given until after that period
has expired: BP Properties v Buckler 1988
c. Anything less than this will be insufficient, eg. warning letters: Mount Carmel
2. Physically re-entering the land and taking possession
Randall v Stevens 1853 (earlier conventional test): mere fact of entry is not sufficient, but
once the doc owner has reasserted title to the land, even just 5-10 mins of re-possession to
kick squatter out is enough to disturb the squatter’s possessory title and stop the limitation
period from running. Irrelevant whether the possessor does not know that repossession.
Limitation Act s 39(2) Formal Entry and Claim
(a) A formal entry on land is not of itself possession or evidence of possession of land,
and
(b) A claim upon land does not preserve a cause of action to recover the land.
Zarb v Parry 2012 (more restrictive test)
[facts] removed some fence and put new one, put tapes around trees, cut down a shrub.
Then left due to verbal arguments with AP → insufficient, only symbolic
[test] whether factual possession of the adverse possessor has been brought to an end. If
the paper owner did less than exclude the adverse possessor, such as plant a flag, put up a
notice or make an oral declaration of ownership, the AP would continue to have factual
possession and the intent to possess ie. not effectively interrupted. But there is no need for
the paper title owner to know that he is bringing the AP to an end: it is the quality of the acts
which matters.
[examples insufficient to resume possession]
1. Stronger evidence is needed where the doc owner knows of the adverse possession:
Shaw v Garbutt
2. Mere formal entry ≠ retaking of possession: Randall, Limitation Act s 39(2)
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3. Returning land on the invitation of the AP if extended on the basis of a prior right to
possess: Bonifacio v NSW Trustee and Guardian
4. Unsuccessful attempt to re-enter that has been thwarted by AP’s threats of violence:
Shaw v Garbutt
5. Mere oral or written protests, requiring property be vacated : Mount Carmel
investments
6. Large land, DO went on picnic several times a year and shoot rabits occasionally and
a wrote a letter to AP = insufficient
7. mere “Paper dealins” eg. giving a mortgage over the land: O’Neil v Hart,
8. granting a lease where tenant does not take actual possession: Simpson v Council
of North West County
a. Exception: where Crown land is subject to adverse possession, the issue of a
Crown grant or lease would stop time running.
9. Conveyance of land to a purchaser for value
a. Although if torrens land, s 54D(4)
[sufficient to resume possession]
1.
2.
3.
4.
5.
Turning out the possessor, DO removed AP and most his furnitures: Randall
Removing fences: Worssam or other structures: Symes
Bringing court proceedings for possession: Symes
DO entered and surveyed land, stayed for 2 days, AP unaware: Hodson 1906
DO entered land for 15 mins, put down fence and put up sign claiming possession:
Worssam 1858
● Adverse possession and Torrens title
Real Property Act 1900 (NSW)
S 45C Acquisition of possessory title under the Act:
[if the AP started squatting after the land was converted into land held under RPA, RP’s title
doesn’t automatically be extinguished unless AP makes a submission]
(1) No title to any estate or interest in land adverse to the title or the RP shall be acquired by
any length of possession by virtue of any statute of limitations, nor shall the title of RP be
extinguished.
(2) Exception: (1) does not prevent the acquisition of title adverse to the RP, brought under
this Act by the creation of a “qualified or limited folio” of the Register by reason of
possession for any length of time commencing BEFORE the creation of the folio.
- But still possible to acquire a right to possession of Torrens title land good against the
world except the RP: Spark v Whale Three Minute Car Wash, even before the
limitation period runs out(altho no acquisition of legal/equitable interest during this
period): Refina Pty Ltd v Binnie.
- Long-continued possession is also strong and cogent evidence of the boundary as
occupied is the “true boundary” of the land: Turner v Myerson.
s 45D(1) Application for title by possession
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(1) a person is in possession of land under the provisions of this Act may apply to the
Registrar-General to be recorded in the Register as the proprietor of that estate
IF –
(a) The land is a “whole parcel of land”
(b) The title of RP would have been extinguished as against the person so in possession
due to the expiry of the limitation period
(c) The land is comprised in an “ordinary folio” of the Register; or is comprised in a
qualified or limited folio and the adverse possession commenced AFTER the land
was brought under the RPA by the creation of the folio.
● “Whole parcel of land”
A possessory application MUST be in respect of a “whole parcel of land” that meets
minimum town planning standards, need to show evidence of occupying the WHOLE.
- Possess part of large parcel of the land → indicates intent to adversely possess the
entirety of the land
- But if occupy one component of the land where clearly separated into diff
components, can mean only intended to possess that particular component
*fact-sensitive
s 45B(1) definition of whole parcel of land
(a) The whole of land comprised in a folio of the Register
(b) The whole of residue of land comprised in a folio of the Register that remains after
part of land has been: resumed, appropriated or purchased by statutory body;
opened as a public road; shown in a current plan.
(c) The whole of a lot or portion in a current plan
(d) The whole of the residue of a lot
[exceptions]
S 45D(2): An applicant whose possession extends up to the “occupational boundary” that
represents, but is inside the “true boundary, may include in the application for the whole
parcel the area beyond the occupational boundary and up to the true boundary, even without
actual occupation.”
[when adverse possessor is unaware of the true boundary of the land, and in the application
only include evidence of possession up to natural or occupational boundary of the land →
will award the whole of the land even only possessed part of land]
S 45D(6) ‘occupational boundary’ (a) a fence, wall or other structure intended to coincide
with or represent that boundary of the whole parcel,
(b) a channel, ditch, creek, river or other natural or artificial feature that is itself land and
is in close proximity to that boundary of the whole parcel, or
(c) a give and take fence with respect to that boundary of the whole parcel.
S 45D(2A), (5): an application can be made in relation to a “residue lot”(sub-s2B: a strip of
land that adjoins the lot, and intended as a service lane or to prevent direct access to road)
which the applicant has possessed and which could have been the subject of application
had it been a whole parcel of land.
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[adjoining service land is a separate parcel of land ] but if you show use of part of that
service land → can be awarded that actually used part (not the whole service land)
s45D(3): But not applies to service lanes that are vested in the Crown, council by local govt
or road legislation.
● BFP For value without fraud
S 45D(4) [if RP is the owner of the land and AP goes into possession, after some time (not
over 12 years) land was sold to another person without fraud and for valuable
consideration→ for the AP time resets and starts afresh as against the new RP, prior periods
has no effect]
Here AP’s right to possession is good against the whole world except RP: Spark
“Valuable consideration” - usually mean more than nominal, not just a dollar
“Without fraud” - actual fraud or dishonesty - equitable fraud also suffices
- upon registration, the mere fact the new RP has knowledge that there is
someone(the adverse possessor) with an existing interest in the land in and of itself
fraudulent.
What if the purchaser isn’t registered → first in time → unless postponing interests (eg. AP
failed to lodge a caveat = postponing conduct )
What if there is a strata scheme?
Can only claim the part which is actually possessed, not above or below the surface
● Folio
“Qualified title”
Old System → Torrens title in 3 ways:
1. Creating an ordinary folio of the Register by a primary application
2. Creating a qualified folio
3. Creating a limited folio
Qualified folio can be created in 4 ways:
1. Withdrawal of primary application and requests qualified folio: s 28B
2. On registration of a plan of subdivision of Old System land under s 28C
3. Lodging a registered deed(that evidences title to the land and boundary) with the R-G
under s 28D
4. On R-G’s receipt of certain info concerning land with adequately defined boundaries:
s 28E.
s 28EA: In situations 2-4, the R-G may create an ordinary folio instead ie. at R-G’s discretion
*if at the time of conversion, the land is subject to a mortgage, after 1979, R-G can register
either m’or or m/ee: s 12B(1), but now the normal practice is to register the mortgagor as the
RP.
S 28P(1): land comprised in qualified folio is treated the same way as ordinary folio except
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(d) a qualified folio of the Register shall be evidence as to title in all respects as if it were an
ordinary folio of the Register, except that it shall be subject to every subsisting interest in
the land comprised therein, whether recorded in the Register or not.
“Subsisting interests” defined in s 28A: (a) any contingent or vested estate or interest in
land that was in existence at the date on which the qualified folio was created; (b) any
estate or interest in that land, arising by prescription or under any statute of limitations, that
was in existence or in the course of being acquired at the date on which the qualified
folio of the Register was created.
s 28I: R-G may record any subsisting interests of which it is aware on the qualified folio
under
s 28J(1): R-G can record “cautions” on the qualified folio. R-G must place a “general
caution” on the qualified folio warning persons dealing with the RP that the land is held
subject to any subsisting interests, recorded or not.
3 types of “cautions”:
1. Ordinary cautions
a. lapses 6 years after the creation of folio or person for value without fraud
becomes registered, whichever is the later: s 28M(2).
b. Effect of lapsing = freeing that estate/interests from any interests that affected
the land at creation of folio: s 28MB(1).
c. Lapses entirely after 12 years anyway: s 28M(3)
2. Cautions that contain a notation under s 28J(1A)(conveyance without value)
3. Cautions that contain a notation under s 28J(1B)(title based on adverse possession)
a. Generally do not lapse, but RP may apply for cancellation, R-G has the power
to cancel if satisfied all estates and interests in the land are held free from
subsisting interests.
● Caveat
○
○
○
By person claiming a subsisting interest in land the subject of a qualified folio;
s 74A(2)(a), s 74F. Such a caveat prevents the R-G from cancelling the
caution recorded in the qualified folio: s 74H(2), 5(k).
Against possessory applications by a person claiming a legal/equitable
interest in land that is or may become the subject of possessory applications:
s 74F(3), R-G can’t grant without caveator’s consent: s 74H(1)(a)(ii)
Against the registration of delimitation plan: s 74F(4) → R-G cannot register
the plan: s 74H(1)
■ Against dealings(generally) in the case of a limited folio → also incl
excluding R-G from registering delimitation plan: s 74H(3)
“Limited title”
[to enable the conversion to Torrens title of land with boundaries insufficiently defined to
permit the creation of ordinary or qualified folios. ]
S 28 T creation of limited folio:
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In 3 circumstances: where the boundaries are not sufficiently defined to enable:
(1A) an ordinary folio to be created under Pt 3 → R-G may nevertheless create an ord folio;
(1),(2) a qualified folio to be created under s 28C, D, E→ R-G may create a qualified folio;
(3) an ordinary folio created under s 28EA→ R-G may create an ordinary folio.
(4)R-G MUST record in the folio a “limitation” to the effect that he/she has not investigated
the description of the land
(7) [where the limited folio is a qualified folio, provisions of Pt 4A apply to the limited folio]
(8)[if a limited folio is an ordinary folio, the provisions of RPA governing ordinary dolio apply
→ giving the proprietor indefeasibility subject only to the definition of boundaries: s 28U]
S 28U Defeasibility of limited title: (1) Section 12 (3) (b) does not apply to or in respect of
a correction made by the Registrar-General of any wrong description of parcels or of
boundaries in relation to land included in a limited folio of the Register.
(2) Where by any wrong description of parcels or of boundaries any land is incorrectly
included in a limited folio of the Register, section 42 (1) does not operate to defeat any
estate or interest in that land adverse to or in derogation of the title of the registered
proprietor and not recorded in the folio.
S 28V removal of limitation
(1)[R-G may cancel “limitation” recorded in the folio upon lodgement of a plan of survey that
adequately defines the boundaries of land]
● R-G’s power
S 45E general power of grant: (1)R-G MAY grant a possessory application if satisfied
requirement in s 45D have been met → (2) → gives notice of intention to grant specifying a
period (no less than 1 month) → after period expires, (3) record the applicant in the register
as proprietor. (4)if immediately before grant, ant easement, profit a predre was subject to any
condition, they continue to have same force and effect in relation to the estate acquired by
adverse possession.
S 45F restrictions on grant: without prejudice to s 74H, R-G shall not grant if a notice in s
45E(2) has been given and the specified period has not expired.
S 45G withdrawal and rejection of possessory application:
(1) a possessory applicant can withdraw before it is granted.
(2) R-G may reject the application if (a) not complied with Act; (b) deficient evidence; (c)not
proceeded within a reasonable time in the circumstances.
*for old system land, before grant of title, AP has a good legal possessory right in the land.
*for land held under RPA, before expiry of the limitation period, unclear the status of AP’s
rights in the land (probably none due to s 41, altho Butt thinks court takes view that such AP
is the same status of other unregistered interest holder in Torrens title land, similar to
inchoate interest before expiry in OS land). But after all the terms of Part 6A has been
met(ie. Whole parcel, 12 yrs, factual possession, intention ) → statutory right to lodge a
possessory application = legal