KEY TAKE-OUTS
- Idle land grab – Can you make a claim for ownership?
- Adverse Possession – Can you possess it?
- What are the steps and what are the chances it will work?
There was a recent story in the news regarding a block of land sitting idle for over 20 years, and a local resident attempts to take possession of the land and claim it as his.
Is this possible and how?
A large block of land lay idle for over 20 years when an intrepid local resident decided it was going to waste and he would lay claim to the land through an adverse possession claim in the courts. This resident, to sure-up his claim, paid all back rates and taxes, installed fencing and a gate and even a surveillance camera on the idle land. His actions may have been morally dubious but were in no way illegal. The other residents, having become aware of his claim, thought it a greedy land grab and their protests have caused him to abandon his adverse possession claim without ever having a court make a decision.
The torrens title land in question had an owner on title who had passed away and whose descendants could not be located. This is of importance because the bar is much lower to obtain ownership on torrent title land than it is on Crown land.
This begs the question, if he had continued his adverse possession claim in the courts would he have won? Although not common, there are successful cases where seemingly abandoned land has been put to use by someone other than the owner, who then claimed and won legal title to the land.
The Limitations Act 1969 provides that an adverse possession claim can be made after a period of 12 years (not applicable if the possession commenced prior to 1 January 1970). NSW law also requires an application for adverse possession to cover the entire property not just a portion of the property.
Amongst other things taken into account by the courts it was established in the case of Mulcahy v Curramore Pty Ltd [1974] that the main considerations for a positive claim are “that the adverse possession is open, not secret, peaceful, not by force; and adverse, not be consent of the true owner..,”
In the case of McFarland v Gertos, Gertos passed a house in disrepair and believing it abandoned took possession, renovated, paid all outstanding rates and taxes and advertised it for lease and collected the rent on the property for years. Some 19 years later he made a claim of adverse possession which was challenged by relatives of the deceased owner. Gertos had met the criteria mentioned above in Mulcahy v Curramore, his claim was successful, he was granted ownership of the property and the deceased relatives were ordered to pay his court costs.
Perhaps if the subject of the recent news item had proceeded with his claim, we would have a clearer picture of exactly what is required by the courts in order to gain adverse possession…
Please note the above advice is general only and is specific to the individual Contract in question.
For further clarification on the above, please feel free to phone me to discuss.
ABOUT CHRISTINE JOHNSEN:
Christine is a licensed conveyancer and Justice of the Peace at Coutts’ Narellan office. She is highly efficient and is able to assist clients with matters concerning; the sale and purchase of residential and commercial property, retirement village contracts, put & call options and family transfers.
For further information please don’t hesitate to contact:
Christine Johnsen
Licensed Conveyancer & JP
info@couttslegal.com.au
1300 268 887
CONTACT COUTTS LAWYERS & CONVEYANCERS TODAY.
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
