Adverse Possession

1. Definition
AP is the extinguishment of a documentary title holder’s interest and the acquisition of a fee simple title by the
person in AP (Whittlesea)

2. State Parties’ Position

As [squatter] is in possession, he/she is presumed to have the best right, even if wrongful (Perry, Mabo). For
[title holder] to have a claim, he/she must ensure that s/he is not statute barred from making a claim. If
[squatter] can prove AP for 15 years, then [titleholder]’s title is extinguished (s.18) and cannot bring an action
(s.8) LAA

3. When does time start to run?

Time starts to run when the cause of action accrues to the owner (s 8 LAA). This occurs when the true owner is
out of possession, either because he or she has either discontinued possession or has been dispossessed (s 9(1))
AND the land is in the AP of some person in whose favour the limitation period can run (s 14(1)).

E.g. Caroline will argue that time started to run in [Time], when s/he continued to graze his sheep on Red Hill
Heights. As Jane rarely visited the property and no progress was ever made on the house, she had discontinued
use of it (s9) and Martin continuing to graze his sheep, despite Jane telling him to clear them off is also
dispossession, as it is inconsistent with Jane’s rights as owner.

4. What constitutes AP?

To establish AP, factual possession and an intention to possess must be shown by [squatter]. It is important to
note that there can still be AP even if the use of land is not inconsistent with the owner’s future intentions
(Buckinghamshire; Pye).

a) Factual possession
For there to be AP, physical control of the land must be ‘open, not secret; peaceful, not by force; adverse, not
by consent of the true owner’ (Mulcahy v Curramore).
In determining whether there has been FP, courts may consider whether the squatter has an ‘appropriate degree
of physical control of the land’ (Moran).
 Whether the acts committed indicate a sufficient degree of exclusive control will depend on the
circumstances of the case. These may include factors such as:
o The character and value of the land
o The natural and suitable mode of using the land
o What course of conduct would the true owner be expected to take, having due regard to their
own interests? (Whittlesea)
o Has the adverse possessor dealt with the land in question as an occupying owner might be
expected to deal with it?
 Typical acts that suggest control – fencing, grazing, cultivating corps, making repairs, paying rates in
their own name, leasing it out to others, erecting a ‘keep out or private property or trespasser will be
persecuted’ sign, putting a lock on the gate (Moran).

E.g. [SQUATTER] will argue that s/he had physical control of [LAND]. By [ACTS (see above)], s/he was treating
the land as an owner might (JA Pye, Moran). However, [Person arguing against AP] may argue that this physical
control was not to the exclusion of others, as it was not fenced (Moran) / the fences were erected with permission of
[landowner]. [SQUATTER] could counter argue that as s/he attached new locks to the gates of the land, which is
good evidence of AP.
  Doctrine of Constructive Possession – In the case of a large area of land, the acts of possession
performed in a portion of the land may be sufficient to establish AP over the whole (confirmed in
Whittlesea) - need to demonstrate sufficient acts of possession though

o There must be an inference that possession of the part equals possession of the whole.
o “[SQUATTER] may argue that s/he could not be expected to fence/use [area of land] and as
it is wild and coastal land, s/he used the land and possessed it in such a way that is consistent
with the nature of the property.”

b) Intention to possess
AP also requires that the squatter exhibit an intention to exercise exclusive control over the land for the time
being (Buckinghamshire). This may be inferred from the nature and degree of [SQUATTER]’s FP. [Refer to
facts – see relevant factors below]. As Lord Hutton stated in Pye, where there’s unequivocal FP, generally an
ITP is there too. As such, likely to be intent.
 Intention is assessed objectively.
 An intention to own the land is not required; what is required is an intention to possess the land by
excluding the world at large (incl. the owner) so far as reasonably possible.

o Admission of an individual’s superior title not inconsistent with an intention to possess the
land in the meantime i.e. offering to pay rates (Pye)

o E.g. In Buckinghamshire, intention to possess, by fencing and a locked gate only allowing
access to claimant’s land
 Not necessary to show an intention to own now or later, or to exclude in the future; only an intention
to possess for the time being (Buckinghamshire; thus in JA Pye, there was no inconsistency between
the claimant being willing to pay the true owner if asked and his being in the meantime in possession).
 Requires clear and unequivocal acts (that makes the intention to exercise control clear to the world –
(Pye) – might be able to add up series of acts: Whittlesea
o Relevant factors (Whittlesea v Abbatangelo):
 Have they taken full and complete control of the property?
 Can TP’s walk on the property or is it enclosed?
 Have they maintained or repaired fencing around the area?
 Have they paid rates?
 Have they managed the area and used is in a manner akin to that of the paper title
owner?

 Note – statements made by the adverse possessor indicating that intended to possess the land may be
considered, but are not conclusive evidence of intention (Whittlesea)

5. Successive AP (multiple APs)

 If there is AP by multiple squatters and the AP has been continuous, the owner’s title will be
extinguished after 15 years from when the first squatter took possession – the successive periods may
be added (Mulcahy).
o If a subsequent squatter dispossesses a previous squatter, the time continues to run against the
titleholder. However, time will also start to run against the previous squatter

o Where the possessory title is transferred – Courts are not pedantic on continuity issue; date
on which the successor sets foot on the property is not critical
  If the possessory title has been transferred or abandoned, and possession is
continuous, time will run in favour of the last squatter. The first squatter will have no
cause of action.
“As there was no gap in possession (presuming that [1st squatter] did not abandon the land),
[current APer] will argue that as [1st squatter] transferred the land to him/her, s/he can use
his/her [no. of years] and can add this to [1st squatters]’s __ years in which they were in
possession. However, if [1st squatter] did abandon the land in [date], then 15 years will not
have accrued and [current APer] has no claim.”

o Where the AP’s are independent (i.e. each AP dispossess the previous AP) – courts will be
pedantic about there being no breaks in possession.

 E.g. A goes into adverse possession, then B dispossesses A, then C dispossesses B.

 Bowen CJ – Prior possessor (A) would have the best title out of A, B, and C
(provided he is willing to assert his right and is not statute barred from making an
action).

 Discontinuance of Possession – If there is adverse possession and it stops, any time that has deemed
to have been accrued is wiped off, and if adverse possession resumes (by the same person or someone
else), the ‘clock’ restarts and time begins to accrue again. (s.14 LAA)

o When AP no longer in possession and excluding rest of the world.

o Doesn’t include temporary absences. (Whittlesea). Visitation on a regularly basis + acts which
are consistent with the squatter acting in their capacity as the owner are not discontinuances.

 Threshold is high for abandonment to be proved

6. Remedies – The title holder can stop time from running by:

 By effectively asserting their title

o By instituting an action to recover the land (e.g. writ for possession).

o Making a peaceable but effective entry on the land

 Mere formal entry is insufficient (s.16 LAA). Must retake possession

 If the adverse possessor admits the existence of the True Owner’s superior title by
acknowledgement

o The acknowledgement must be in writing and signed by the person making the
acknowledgement – s.25(1) LAA

o This rewinds the clock but does not stop time from running – S.24(1) LAA

7. Statutory period – special cases:

a) Future Interest – on the date in which the estate becomes one in possession.

o 10(2) LAA – time starts running either:

 15 years from the date the squatter took possession; or

 6 years from the date of the death of the life estate holder
 whichever period is longer

o “[Y] has a vested interest from [Date]. This means s/he would have [15 or 6] years to bring a
claim under s 10(2) LAA, which means s/he must have brought a claim by [15 or 6 years after
Y was vested the interest]. As such, s/he is/is not statute barred, and hence can/cannot bring a
claim.”

b) Leases – time starts running against the landlord when the term of the lease has expired (fixed
term).

o Periodic Tenancies – the cause of action accrues to the landlord at the end of the first period
(i.e. week/month/year), unless the tenant pays rent – s.13(2)

o Tenancies at Will – begins to run against the landlord at the end of one year after the
creation of the tenancy.

o Tenancies in Sufferance – time will start running immediately

Cases
Buckinghamshire CC v Moran [1989]
 Judgment: The Court found that the Defendant had established a title by adverse possession and the fact that
the acts of ownership relied upon to establish his claim to adverse possession were not inconsistent with the use
to which the true owner intended to put the land in the future was irrelevant.
o Court rejected the Council’s argument that there was no adverse possession because Moran’s use of the
land (as a garden) was not inconsistent with the future use of the land for road construction (as per
Leigh v Jack). Instead, Court held that there was no requirement of inconsistent use, and that at most,
Moran’s awareness of the Council’s future plans for the land would only make it more difficult for
him to prove factual control and animus possidendi.
o The court then proceeded to apply the conventional analysis to determine adverse possession,
considering factual possession, and animus possidendi
  On the issue of factual possession;
 Moran had secured a complete enclosure of the plot and its annexation to Dolphin
Place; any intruder could have gained access to the plot only by way of Dolphin
Place, unless he was prepared to climb the locked gate fronting the highway or to
scramble through one or other of the hedges bordering the plot.
 The defendant had put a new lock and chain on the gate and had fastened it.
 He and his mother had been dealing with the plot as any occupying owners might
have been expected to deal with it; through maintaining it as part of that garden (i.e.
trimming the hedges, planting bulbs and daffodils in the grass, etc.)
 On the issue of intention;
 the defendant had erected a gate and placed a new lock and chain on it. This “did
amount to a final unequivocal demonstration of the defendant’s intention to possess
the land.” (as per Slade LJ)
 In his letter to the council, Moran acknowledged that he would leave the plot if the
Council required it for road diversion purposes.
o Intention to own not required. What is needed is an intention to possess –
to exclude the true owner for the time being (i.e. till it is needed for road
widening).
 Principle: Adverse possession requires the possessor to show that they had factual possession and an intention
to possess.
o Factual possession requires an appropriate degree of physical control over the land.
o The squatter needs to show an intention to possess (not own) for the time being (not forever).

JA Pye (Oxford) v Graham [2003]

 Judgment: Initially, Graham was in possession under the grazing licence, and that possession became adverse
after the licence was not renewed. In applying the approach in Buckingham, the HoL held that Pye’s title was
extinguished, and that the Grahams had become the true owners of the land.
o On the issue of factual possession;
 Land was within the defendant’s exclusive and physical control – Pye’s company could not
gain access to the land because it was enclosed by fences all around, and the only entry point
was the gate (which was locked).
 Grahams farmed the land as part of their own farming enterprise – therefore had dealt with the
property as an occupying owner might have done.
o On the issue of intention;
 The fact that defendant was willing to pay for the grazing licence did not prevent him from
acting in such a way as to possess the land as if he was the true owner.
 On the issue of intention, an admission of documentary title holder’s superior title, is
not inconsistent with establishing an intent to possess.
 “Once it is accepted that the necessary intent is an intent to possess not to own and
[2] an intention to exclude the paper owner only so far as is reasonably possible, [3]
there is no inconsistency between a squatter being willing to pay the paper owner if
asked and his being in the meantime in possession…”
 Principle: An intention to own the land is not required; what is required is an intention to possess the land by
excluding the world at large (incl. the owner) so far as reasonably possible.
 o Admission of an individual’s superior title not inconsistent with an intention to possess the land in the
meantime.

Whittlesea CC v Abbatangelo [2009]

 Facts: Various acts were relied upon to show intention to possess the land adversely:
o installation of a gate and maintenance of fences on the boundaries of the land, without seeking
financial contribution from the Council;
o use of the land for grazing, shade, shelter and at times enclosure of the variety of animals kept by the
Abbatangelos from approximately 1960;
o installation of a bathtub;
o maintenance of trees and vegetation, including mowing of grass, and removal of noxious weeds and
pests — foxes, snakes and rabbits;
o the construction of a cubbyhouse on the land; and,
o use of the land for sporting and recreational activities such as horse riding, archery, football, horse
training, rabbit shooting, bike riding, ‘paddock bomb’ driving and cricket.
Between 1970 and 1975 the family moved to Geelong and visited their property in Mernda on weekends to feed
and water their livestock and to maintain both their property and the land. The Whittlesea City Council later
used this fact to argue that there was a break in possession.
 Issue: Was there adverse possession of the land from the Council?
 Judgment: At first instance, the Court found in favour of the defendants. Later, the plaintiff’s appealed, and the
Victorian Court of Appeal also found in favour of the Abbatangelos, finding that they had been AP of the Crown
land for 15 years without the Council’s consent.
o Factual possession:
 Court found that there is no general requirement at law that physical structures must be
erected on the disputed land in order to prove factual possession
 The Court of Appeal held that the question what acts of possession are sufficient to show
factual possession must always depend on the facts and circumstances of each individual
case
 It cannot be said that grazing stock on the disputed land of itself will be sufficient to establish
possession, however, the grazing of stock in combination with other matters may very well
constitute evidence to find sufficient factual possession.
 In response to the 5-year gap, the Court found that while there was a gap in permanent
occupation, the property was not abandoned. It was visited regularly, and the defendants
consistently maintained their property on the land throughout the period.
 Even if it was found that there was a break in possession, the 15-year requirement
would still have been satisfied.
o On the issue of intention;
 The Council relied on the various notations made by Mrs Abbatangelo in her planning appeal
wherein she acknowledged that she did not own the disputed land.
 In response, he Court of Appeal held that the alleged adverse possessor must show an
intention to exclusively possess, not to own. It is irrelevant whether there is an
acknowledgment by the alleged adverse possessor of the true paper owner of the disputed
land.
 All such an admission does is to confirm the state of the paper title but it does
nothing to clarify who is in possession of the disputed land and with what intention.

Part-Parcel Claims

1. Is there a boundary encroachment such as to constitute a trespass?

2. What remedies are available to the plaintiff?
 Before the limitation period expires, the owner may apply to obtain an injunction to restrain trespass caused by
the encroachment.
 An injunction is the prima facie remedy for trespass (Breakfast Investments).
 Damages will only be ordered in exceptional situations;
 Damages in substitution for an injunction may be given if (Jaggard):
1) If the injury to P’s legal rights is small;
2) Capable of being estimated in money;
3) Can be adequately compensated by a small monetary payment; and
4) Would be oppressive to D to grant an injunction;
Then damages in substitution for an injunction may be given.
Examples
 In Jaggard, D built a house on property at the back of their block and used remaining land on their block for
right of way in breach of a covenant that it would only be used for a private garden. Similarly, this new house
used private road (continuing trespass). P, another resident in the cul de sac, wanted an injunction.
Held: Court of Appeal refused; damages appropriate. Here, injury was small (minimal increase in traffic),
could be estimated in money (what D’s might reasonably have paid for right of way and release from
covenant), and an injunction would be overly oppressive because new house would then have no road access.
 In Breakfast Investments (encroachment case), BI attached metal cladding to sections of its building that
protruded into PCH’s airspace. PCH wanted injunction to remove cladding. Injunction upheld. Here, harm
posed by injunction to BI was removal of non-structural addition, so very minimal.