Defending an adverse possession claim can be difficult.
In the usual section 60 application to the Titles Office, by the time the registered owner becomes formally aware of the claim, it has generally already undergone a substantial amount of investigation.
It is important to note that where an affected owner can be identified, notification of the claim is made to that owner by the Titles Office, but the supporting declarations and other evidentiary materials forming the application are not provided.
The applicant’s solicitor will ordinarily have considered the history of possession and formed the view that there is a proper basis for the claim. A licensed surveyor will also have examined the physical boundaries and occupation of the land. In many cases, the issue first comes to light when a surveyor carrying out a title re-establishment survey discovers that an existing fence or other occupation does not follow the title boundary.
The application and supporting evidence are then examined by the Titles Office before the matter progresses to the notification stage.
Accordingly, receipt of notice of an adverse possession application should generally be approached on the basis that there is already significant material supporting the claim. That does not mean that the claim cannot be successfully challenged, but there should ordinarily be some identifiable factual material in the hands of the affected party that was perhaps unknown to, or not disclosed by the applicant, before an objection is pursued.
What might provide a basis for objection?
The circumstances vary from case to case, but matters requiring investigation may include whether:
- the applicant or previous possessors have actually had the required 15 years of continuous adverse possession
- the possession was sufficiently exclusive
- the applicant had the necessary intention to possess the land
- the occupation occurred with the registered owner’s permission
- there was any interruption in possession
- the registered owner resumed possession or otherwise effectively asserted control over the land during the relevant period; or
- the applicant acknowledged the registered owner’s title during the 15-year period.
An acknowledgment can be particularly important. Under the Limitation of Actions Act 1958, a legally effective acknowledgment of the registered owner’s title during the limitation period can cause the 15-year period to begin again. The acknowledgment must satisfy the statutory requirements, including that it be in writing and signed.
Survey activity may also be relevant. In some circumstances, steps taken by the registered owner to survey and assert ownership of the disputed land have been treated as an act of repossession or an interruption of adverse possession. Whether that has occurred depends upon the particular facts and should not be assumed merely because a survey has been undertaken.
Objecting to a section 60 application
A registered owner or other person claiming an estate or interest in the affected land may lodge a caveat under section 61 of the Transfer of Land Act 1958 forbidding the Registrar from granting the adverse possession application.
This is a special adverse possession caveat and is different from the ordinary caveat against dealings.
Importantly, lodging the caveat is only the first step. Unless the dispute is otherwise resolved, the caveator must act promptly to substantiate the objection through court proceedings. A caveat will lapse after 30 days unless the necessary court proceedings are on foot and notification of that made to the Titles Office
The decision to object
The decision to lodge a caveat and commence proceedings should not be made lightly.
Court proceedings can be expensive. If the registered owner does not have a sound factual and legal basis for resisting the claim and the adverse possession applicant ultimately succeeds, the registered owner may also face an adverse legal costs order.
For that reason, the available evidence should be examined carefully before an objection is lodged.
The same broad considerations apply where an adverse possession claim arises in a Magistrates’ Court fencing proceeding or is brought directly in the County Court or Supreme Court. The central question remains whether the claimant can establish the necessary adverse possession for the required period.
Gauld & Co., Solicitors can review the history of possession and the available evidence and advise whether there is a proper basis upon which an adverse possession claim may be resisted.
