Professional Documents
Culture Documents
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)
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.
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)
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.
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 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.
6. Remedies – The title holder can stop time from running by:
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
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.
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).
Part-Parcel Claims