Why do you need to know about Adverse possession?
You might not be familiar with the legal doctrine of adverse possession. And you might not see how this topic is of any practical relevance to you!!??
If you don't own any property (such as a house, land, a farm, or an investment property), that might be true.
However, if you are an owner of land (or have a legal interest in land), then reading this blog should trigger a timely 'caveat emptor' warning. Before entering into any contract to buy goods, this well-known Latin legal expression means 'Let the buyer beware'!
But when dealing with the legal doctrine of adverse possession, the expression caveat emptor becomes 'Let the owner beware'. And it especially applies if you have already become the proud owner of real property.
What is the rule of adverse possession (and how does it affect you)?
What exactly is this legal rule, you ask? The rule is that any person who occupies part of your land without your permission (including your neighbour) can later claim legal ownership of that part if they have maintained occupation and control over it for 12 years in a row.
Even when a legal claim is actually made against them, many of our clients still believe that the particular rule could not apply to their own circumstances.
Here are some of the misconceptions that should be clarified at the outset:
a) You may have heard of cases in the news where a squatter has been living in an apartment for well over 12 years, and has then successfully claimed ownership of the property.
But the rule is not just limited to claims over the whole of the land! Claims can be made for any part of your land. (In fact, those are by far the most common type of adverse possession cases).
b) You may think that the rule won’t apply to you if you had no idea that the neighbour had a garage, shed, or fence encroaching over the boundary-line to your property.
If you thought that, you would be wrong! In fact, even if neither you or your neighbour were previously aware of the encroachment, they could still claim adverse possession over the part of your land where the shed or fence was built. (In such cases, what counts is the time period over which the structure has been located there).
c) Another misconception is that the rule doesn't count if your neighbour has not owned the property for over 12 years.
That view is incorrect. The rule has a viral effect! It can be passed on from one neighbouring owner to the next. As long as the garage or wall has remained in place for at least 12 years, it does not matter who owned it during that time. The most recent owner can claim that a combined 12 year period has passed, enabling them to make the claim.
So if you are a homeowner, you need to ask yourself:
- Whether the neighbouring property has a shed or garage that is close to the boundary of your property?
- Whether the fence or wall on the boundary of your property has been there for a number of years (maybe since before you bought the property)?
- If you are a farmer: whether your boundary fence has been broken, permitting a neighbour to gain access to part of your land (unless you don’t know one way or the other)?
Each of these are tell-tale signs of a potential adverse possession claim by your neighbour. Or the claim can even be made against you by the very next person who buys your neighbouring property.
Let's now put all of that into context. If a fence, wall, garage, shed, or some other use has been made of part of your land for 12 years in a row, then an adverse possession claim can be made against you!
Although often hiding in plain sight, this insidious legal 'pest' (known as the doctrine of adverse possession) literally lies at the bottom of your garden (or farm paddock)! Indeed, it is a garden pest of monumental proportions.
How to confront the problem?
Of course, the best line of defence is to prevent any adverse possession claim from occurring at all.
There are steps you can take to find out if a possible adverse possession claim could be made against the property you're about to buy. Blogs number 2 and 3 in this series discuss different ways in which you can prevent an adverse possession claim from being made in the first place.
But thankfully it's never too late to prevent a claim from being successful, even if you've already bought the property!
The very first step you need to take in defending against such a claim is to find out if there's a present risk. Therefore, you need to find out whether any neighbouring structure or improvement (such as a fence, wall, garage or shed) encroaches over the boundary line of your property. Even if it was accidentally caused, that part of your land can become the subject of a claim.
Defending against an attack
The legion of key defences used in Court battles between the Owner and the adverse possessor ('Occupier') can now be introduced.
Some of the defences are well-recognised by statute ( through the Limitations Act 2005 WA, or its predecessor). Others have arisen in cases reported in this area of law.
In summary, the key defences are based on the following events:
- The enforcement of the Owner's legal right to recover possession of the land (or other item of property)
- Acknowledgement of the Owner's title (by the Occupier's written confirmation);
- The Owner being under a disability (such as mental incapacity or infancy at the time when the Occupier's act of adverse possession first occurs);
- Certain types of fraudulent concealment (which have prevented the Owner from becoming aware of the Occupier's adverse possession);
- The Occupier's lack of the requisite intention to adversely possess the Owner's land;
- Permission, licence, or some other form of consent having been given by the Owner (and accepted by the Occupier);
- An abandonment of the property by the Occupier (before the expiry of the full 12 year period).
The key defences will be further detailed in the next two blogs in this series.
Epilogue
Seeking timely assistance from a legal practitioner can assist you to identify defences against a claim of adverse possession.
Professional advice can also enable you to devise a defensive strategy. That strategy should aim to minimise the risks of such a claim.
Contact Us
If the issues discussed in this blog are relevant to you and/or you require legal assistance, you can contact Tony or Andrew at Irwin Legal on admin@aristei.com.au or by contacting 08 92218337.
About the Author
Anthony J Aristei ('Tony') was admitted to legal practice in Western Australia in 1985, and admitted as an independent barrister in 1996. With some 40 years of legal experience, he has represented clients in over a thousand cases, including numerous high-profile matters reported in a number of law reports such as the Western Australian Law Reports, State Reports and various Federal Reports.
Tony is an accomplished legal writer, having authored the Nutshell students' text on real property law and annotated commentaries on retail shops legislation in Western Australia. He has also written various Law Society of Western Australia and LexisNexis seminar papers on property, equity, and trusts law. Additionally, he previously served as the President of the Anglo-Australasian Lawyers Society in Western Australia. (The Society fosters professional relations between legal communities in Australia, New Zealand, and the UK).