Posted By IrwinLegal
Adverse possession series – The Fundamentals

Introductory Comments

Adverse possession is a doctrine of property law in Australia. It is yet another legal doctrine that we have 'inherited' from the UK. Upon colonisation of Australia by the British, their pre-existing legal doctrines were adopted (over time) by Australian States and Territories.

What is the meaning of the term adverse possession? In short, if an owner of property is dispossessed from any part of their land, the owner’s title to that part of the property will be effectively extinguished after the expiration of a period of 12 years of dispossession. (The limitation period of 12 years applies in Western Australia. By contrast, the period in Victoria is 15 years). 

Members of the public are often surprised by the legal fact that they can lose the whole of their property if it has been adversely possessed by a squatter or a trespasser for an unbroken period of 12 years. They are even more surprised to learn that the doctrine even applies to situations where only a portion of their property has been adversely possessed by a squatter or trespasser over the same period of time.

In other blogs in this series, we have highlighted the dangers presented by such innocuous fixtures as fences, walls or sheds if they encroach over the boundary of your land. If the fixture remains in place for a consecutive period of 12 years, then the neighbouring land owner can claim ownership over the portion of your land where the fence, shed or other fixture is located.

Exceptions to the Rule

The doctrine of adverse possession does not apply to all types of land, nor to all types of owners of land.

In the case of Crown land, adverse possession cannot be claimed. Crown land is protected from such legal actions by statute in Western Australia. (By contrast, Crown land in NSW can be adversely possessed by any person after a 30 year period of occupation).

In WA, there are a number of forms of ownership that require special considerations as to the application of adverse possession. Land held by a deceased estate, or by a trust, or leased land are examples of claims that need to be carefully considered.

Operation of the Rule

Commencement of the limitation period

The rule operates in a negative way. If your neighbour (or a trespasser or squatter) occupies the whole or part of your land, then you have a right to recover possession of that land. Your right is enforced by applying to Court for an order against the person occupying the land. That right ‘accrues’ from the date when the occupier first enters onto your land.

In the common example of a fence or a shed that encroaches on your land, your right to recover the land (on which the fence or shed has been built) accrues from the date when the fence or shed was completed.

Another type of occupation of land by a neighbour, trespasser or squatter occurs when the occupied land was not being used by the owner at the time.  Examples often occur in rural and farming areas. If a piece of land has apparently been abandoned, or is not being used by the owner (whether directly, or by leasing the land), the land can be adversely occupied by another person.

The commencement date of the limitation period is calculated from the date when the occupier first moved onto the land to use it for his or her own purposes. One example is when a neighbouring farmer starts using part of the adjacent owner’s land to run cattle or sheep.

The adversity of the possession

As noted earlier, possession (as a legal term) usually refers to the occupation of the whole, or part, of land. In order for possession of land by a neighbour, squatter or trespasser to occur (in law), a number of conditions need to be present.

The occupation of the land (whether the whole or part) must be open, not secretive. The nature of the occupation must be readily apparent to anyone who observed the land after it had been adversely possessed. For instance, if the land has been fenced by a non-owner without permission from the owner, then the fact of occupation of the fenced area would be apparent.

 The occupation must be peaceful. The act of occupation must not involve criminal acts directly against the persons already occupying the land (for example, by physically  forcing them off the land).

Nevertheless, subject to the trespasser not acting violently, the actual occupation by a trespasser still operates as ‘adverse possession’ of the land. Therefore, it can result in the owner’s title to the land being extinguished after a 12 year period of occupation.

The occupation must be effectively exclusive, uninterrupted and continuous for a period of 12 consecutive years. Importantly, this rule is satisfied in relation to the occupation of small portions of an owner’s land. By way of example, if a person erects a fence over part of their neighbour’s land, then the simple fact of the fence remining in place for at least 12 years would be sufficient.

The occupation must not be based upon the consent or permission of the owner of the land. If a neighbour seeks your permission to use an unfenced part of your land from time to time, that does not constitute adverse possession.

How to stop the limitation period clock from ‘ticking’

On the date when an occupier has taken adverse possession over your land, there is a 12 year limitation period for you (as the owner) to take legal action to recover the dispossessed land.

Merely demanding that the adverse possessor vacates from your land will not stop the clock from ‘ticking’. Even sending a letter of demand to that occupier will not be sufficient.

The limitation period of 12 years refers to the maximum time period which you have to commence a legal action to recover possession. Therefore, it is the commencement of that legal action which ordinarily ‘stops the clock’. The commencement of legal action usually takes effect (in this area of law) by the filing and service of a Writ of Summons in the Supreme Court of Western Australia.

If you file a Writ of Summons after the 12 year period of occupation has expired, it will be too late if adverse possession has actually occurred. Your ownership of the occupied land will still be extinguished.

Another method of terminating the adverse possession is by physically re-entering onto the land, and resuming your own occupation. However, this type of ‘self- help’ remedy can result in legal complications for you (particularly if any acts of violence occur). For example, it is possible that you could remove a fence which has been placed over the boundary of your land in order to stop the adverse possession from continuing. Nevertheless, the repercussions of that action could result in Court action by your neighbour, or by the local council.

Resulting Application of the Rule

The doctrine of adverse possession is an express exception to the registration of titles at Landgate in WA. If such a claim is established, then the occupier can take steps to register his or her interest in the occupied land.

In order to establish the claim, the occupier can pursue either one of two different avenues:

a) The occupier can apply to the Supreme Court of WA for appropriate orders of ownership; or

b) The occupier can apply to the Commissioner of Titles of Landgate (by way of a paper-based application). The procedure is determined according to Landgate's transaction procedure guides.

Other blogs in this series provide further information in relation to both avenues for redress.

On the other hand, the owner of the occupied land can take different avenues to effectively terminate or extinguish the claim of adverse possession. (Two of those avenues were discussed under the previous sub-heading).

Epilogue

The doctrine of adverse possession is ‘here to stay’. In the eyes of the law, ‘ignorance is no excuse’.

But forewarned is forearmed! Your understanding of the fundamentals can help you to ‘help yourself’.

If you do identify the existence of a potential claim of adverse possession, you can take appropriate steps to enforce your rights (whether for or against the 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 also an accomplished legal writer, having authored the Nutshell students' text on real property law and annotated commentaries on retail shops legislation in Western Australia, along with various Law Society of Western Australia and LexisNexis seminar papers on property, equity, and trusts law. Additionally, he previously served several terms as the President of the Western Australian branch of the Anglo-Australasian Lawyers Society, which fosters professional relations between legal communities in Australia, New Zealand, and the UK.