Adverse possession and the role of surveyors

By on 23 May, 2022

©stock.adobe.com/au/M-SUR

Surveyors need to be aware of the issues surrounding the principle of adverse possession.

By Tony Proust

For years I have been interested in the notion that one can obtain title to land simply by occupying it, and why it is not considered to be fraud. In recent years there have been a number of unusual and fascinating court cases in Victoria, NSW and WA which have highlighted this little-understood but essential component of our property law.

Surveyors have a good working knowledge of land law and boundary definition. As a surveyor, you may play a critical role in identifying cases of adverse possession, with survey evidence potentially becoming critical to any claim.

Background

Adverse possession is a feature of all common law jurisdictions derived from England, including all Australian states, but not generally in the ACT or the NT. Under the principle of adverse possession, a person, who for a period of time, has been in possession of land owned by another, can gain title to that land.

Underlying this principle is the recognition that an adverse occupier who has long been in undisputed possession of land should be recognised as the owner of the land. In NSW, WA, Queensland and Tasmania the period to qualify for adverse possession is 12 years; in Victoria and South Australia it is 15 years.

Adverse possession means not only the mere occupation but also the actual physical possession in an open and peaceful manner, without the consent of the original owner. The claimant will need to be able to prove to the Land Titles Office, in the state of jurisdiction, that they have occupied the land for the entire period of the time specified. If there is any form of permission (such as a licence, lease or agreement to use the land) adverse possession cannot be claimed because it will be clear that the owner never intended to pass over ownership.

Adverse possession is sometimes described as ‘squatters law’ — Australian folklore has many stories about squatters and ‘squatters rights’.

Case by case

First, a celebrated Melbourne case. Land was gifted to Whittlesea City Council in 1908 for a new shire hall which was never built. In 1958 a couple bought the house next door and began to take over the subject site, gifted to Council years earlier, as their own. They erected fences, grazed a variety of animals, mowed the grass and maintained the site, removed noxious weeds and pests, constructed a cubbyhouse and used the land for various recreational activities such as horse riding, bike riding and cricket.

In 2009 they successfully claimed the land under adverse possession. In his ruling, Justice Pagone (Abbatangelo v Whittlesea CC) stated: “the doctrine of adverse possession has been long and well established and whilst at one level may be said to reward a wrongdoing (author’s emphasis), at another level… it is a practical means of regularising possessory claims against documentary owners… who have not asserted a higher title. The law has long since accepted that it is more important that an established and peaceable possession should be protected than to assist the agitation of old claims”.

In 2018 a Sydney property developer won a court battle over an abandoned house in Ashbury. He changed the locks, renovated the house and rented it out for 20 years before claiming the land under the principle of adverse possession. In McFarland v Gertos the court ruled that Mr Gertos had acquired the land under adverse possession, despite a challenge from the relatives of the last listed owner. The court found that Mr Gertos has sufficient evidence to show he invested money to repair the house, paid taxes and leased it to tenants. “Mr Gertos succeeded in taking and maintaining physical custody of the land to the exclusion of all others and he has assumed the position of landlord,” the judge said.

(For more details, search for ‘Sydney property developer set to gain over $1m on Asbury home he claimed with squatting laws’.)

In 2019 the Supreme Court of Western Australia, in Ben-Pelech v Royle 2019, ruled in an interesting case of adverse possession. Two lots, 238 and 239, in Hesperia Ave, City Beach, were in the one ownership. In 1993 they were sold separately. There were other issues in the case but let’s just focus on the boundary between the two lots. Before the lots were sold the owner engaged a surveyor to mark the boundary between the two lots. In 1993 the parties agreed to demolish the old fence and erect a new fence on the ‘correct’ surveyed boundary.

In 2017 it emerged that in 1992 a surveyor had wrongly pegged the front corner of the common boundary by 0.53 metre which caused an increase in the frontage to lot 239 and a decrease to the frontage of lot 238. The owners of lot 238 asked the court to determine that the boundary fence between the two lots be made to conform with the dimensions on the land title and to remove the existing fence and erect a new fence on the correct boundary. The owners of lot 239 opposed this and counterclaimed that they owned the disputed land under adverse possession due to their long and continuous use of the land.

The ruling is complicated, but ultimately the owners of lot 238 failed in their claim to demolish and replace the fence while the owners of lot 239 acquired 27 square metres of land by adverse possession, reaping the benefits of the surveyors mistake 25 years earlier.

In 2020 the ABC website reported that a Sydney man, Mr Hardy, won a NSW Supreme Court battle against his neighbour over a 3.3-square-metre section of an old ‘dunny lane’ using the principle of adverse possession. The property in Redfern was transformed by the successful claimant into a small boutique garden, first having used it to store tools. Mr Hardy bought the property in 1998 (the dunny lane was no longer in use) and by 2005 had transformed part of the lane into a small garden. The unsuccessful claimant, Mr Sidoti, bought the adjoining land in 2018 and the land in question was included on the land title. In Hardy v Sidoti 2020 the court ruled that the former owners of Mr Sidoti’s property needed to have recovered the land as titleholders by no later than January 2017. Further, the court found that Mr Sidoti did not acquire title to the land when it was purchased in April 2018 and under adverse possession Mr Hardy had acquired the land.

However, there was an interesting twist. The land in question was not Torrens Title land but was ‘Old System’ land converted in ‘Limited title’ in 2005. If the land had been Torrens Title, or Mr Hardy’s occupation had begun after the conversion to Limited title, he would have had to show possession of the whole of the land, not just part. Mr Hardy was very lucky.

(For more on this case search for ‘Sydney man invokes squatting law to win rights to Redfern dunny lane’ and ‘Redfern neighbours take fight over dunny lane to appeal court’.)

Old real estate survey. Original blueprint slightly faded and printed on old printer.

In 2021 there was a case in Western Sydney in which a descendent of the legal owner retained land which was claimed by a neighbour. For some years Mrs Higgins lived, as a child, on the 4-acre lot that was owned by her grandmother. After the grandmother died Mrs Higgins moved away and the land was forgotten. The neighbour, a developer of a retirement village, started to use the land for access and after some years went to court to claim the land under the principle of adverse possession. Locals heard about the claim and contacted Mrs Higgins who eventually obtained title of the land. It turns out that while the developer was using the land, so were others – for walking their dogs, trail bikes and such. The developer had closed the gate and used the land but not to the exclusion of all others. Mrs Higgins was lucky.

(Search for ‘Tracey almost lost her family property to a big developer who claimed squatters rights’.)

A surveyor’s perspective

Following the recent cases outlined above, The Weekend Australian Magazine covered the topic of adverse possession in Finders Keepers on 5 December 2020. That coverage was followed up by publication of a letter from a surveyor on 19 December 2020:

“As a consulting surveyor for more than 40 years, I have encountered several situations of adverse possession. In rural areas this can occur where a farmer enters into an unwritten agreement to allow a neighbour to use an adjoining paddock. Over time and with deaths and transfers, the original arrangement has been forgotten and it is only when the surveyor is called in, often for an unrelated purpose, that the adverse possession is revealed.

“In the urban situation it can occur when a vacant parcel of land is sold, without the benefit of a survey to determine that the property described in the conveyance is, in fact, the land the purchaser believed they were buying. I recall several occasions where houses were built on parcels the purchaser believed they were buying (frequently adjacent to the one described in their title) and lived in for years before the error was revealed.”

There is no doubt in my mind that prospective land purchasers should always order an identification survey, prior to purchase, to ensure they know what they are buying. The demise of identification surveys and enthusiasm for title insurance instead, is no protection against adverse possession or boundary encroachments and the surveying profession should emphasise this point at every opportunity.

Conclusion

No system of land title is perfect, but our system is as close to perfect as one can get. However, we need a pathway to resolve cases of adverse possession, to protect those who might otherwise be evicted unfairly from land they have occupied for many years.

Adverse possession is a risk if landowners abandon their land, or do not occupy the land. Landowners should ‘use it or lose it’ and absentee land owners should be especially vigilant. Fence the land and always pay the council rates, even when ownership is in dispute.

Some land law professionals consider adverse possession to be logical, fair and valid, while others think the law has less relevance these days and might ask the question — what is the public good of having a law that allows others to obtain title to land by occupation only? Either way, surveyors need to be aware of the issues surrounding the principle of adverse possession and how it might apply.

The views expressed in this article are those of the author.

This article was first published in the Apr/May 2022 issue of Position magazine.

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