Mr Down­ie’s daugh­ter and grand­chil­dren) com­menced pro­ceed­ings in the Supreme Court of New South Wales seek­ing, among oth­er things, an injunc­tion restrain­ing the Reg­is­trar-Gen­er­al from reg­is­ter­ing Mr Ger­tos as the pro­pri­etor of the prop­er­ty as well as a dec­la­ra­tion to the effect that Mr Ger­tos was not enti­tled to be reg­is­tered on the title to the Ash­bury property. Mr Ger­tos took pos­ses­sion of the Ash­bury prop­er­ty in late 1998, after Mrs Grimes died. In New South Wales law it is pos­si­ble for you to become the own­er of land by ​‘adverse pos­ses­sion’. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. There must be a sufficient degree of exclusive physical control over the land and it is generally considered to show such control you must exclude all others. In 2017, Mr Ger­tos applied to be record­ed as the pro­pri­etor of the land rely­ing on the law of ​“adverse possession”. A common situation is where a property has been occupied for a long time without permission of the owner, but the owner failed to remove the occupant. Under the LRA, there is no limitation period for recovery of a regist… If you have any questions about a potential adverse possession claim, or real estate related legal issues in general, please contact the Law Offices of Peter Brewer at (650) 327-2900 or on the web at www.BrewerFirm.com. Insights & events> Insights> Rectification vs adverse possession addressed in recent case 12 December 2018 The Court of Appeal has found that a registered proprietor whose title originates from a forged transfer is able to defeat an application for rectification based on adverse possession due to the expiry of limitation. (2004) 10 SCC 779, It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. As indicated above, that seems to be an obscene amount of money. Mr Down­ie died in 1947, appar­ent­ly with­out leav­ing a will, with no rep­re­sen­ta­tive appoint­ed in respect of his deceased estate. The most difficult element to prove in an adverse possession case is the requirement that the adverse possessor pay the taxes on the land they seek to obtain title to. Under section 15 of the Limitation Act 1980, a squatter could obtain title to land by taking uninterrupted and unchallenged adverse possession of it for 12 years (or such extended period as the Limitation Act requires in the case of fraud, mistake, deliberate concealment or disability), provided that they were in possession of the land and had the intention of having exclusive possession of it. Adverse possession is controversial since in effect it permits squatters to lawfully steal land. Dealing with future cases of land possession. Adverse possession is a means by which title to land can be acquired by taking possession for a period of time. As indicated above, that seems to be an obscene amount of money. Accord­ing­ly, Mr Down­ies’ rel­a­tives’ appli­ca­tion for relief was refused by the Court and they were ordered to pay Mr Ger­tos’ court costs. Custom Search Home : Land law : Adverse possession . 2017 AllCJ 1022 : 2017 (4) All.M.R. In Western Australia, where a person occupies land owned by another individual for a period of more than 12 years against the wish of the registered proprietor on the Certificate of Title, the ‘adverse’ occupier is eligible to make an application to the Commissioner of Titles that the land they are occupying be transferred to them. Some states don’t require squatters to pay property taxes in order to claim adverse possession. In order to claim ownership of land by adverse possession there are a number of elements you must prove. It is! Here are summaries of two recent cases that caught our attention. You may know adverse possession by the colloquial term, “squatter’s rights.” Basically, if someone has had possession of a piece of real property for a long time without the permission of the legal owner, then he or she may be entitled to ownership of the property under adverse possession. The recent decision of the Court of Appeal in Thorpe v Frank is expanding our understanding of what can amount to adverse possession.The Court of Appeal has confirmed that in certain circumstances repaving or resurfacing, in itself, can amount to exclusive possession of land. Larry Hagman owned a parcel of land in Ojai, California. https://lbblawyers.com/resource/developments-alaska-adverse-possession-law AIR 1995 SC 895 : (1995) 2 SCC 543, The concept of possession is “polymorphous. The rel­e­vant evi­dence demon­strat­ed, among oth­er things, that Mr Ger­tos open­ly adver­tised the Ash­bury prop­er­ty as being for rent, paid coun­cil rates, and arranged for a real estate agency to man­age the property. Adverse possession occurs when you occupy land to which another person has title and treat it as your own. A similar problem exists when the land being possessed is held subject to a trust. The courts always take unkind view towards statutes of limitation overriding property rights. Mr Best was a builder and construction worker who came across an abandoned property in 1997, which was in a serious state of disrepair. Claiming Adverse Possession in Western Australia. The recent Appeals Court case of Paine v.Sexton, 2015 WL 5567171 (Mass. Webinar Instructions. All attendees must log-on through their own email – attendees may not watch together if they wish to earn continuing education credit. Recent Changes to the Law of Adverse Possession in Pennsylvania. 16-1102 In March, the Court of Appeals issued a decision involving a claim of adverse possession. The legislature in various States confers rights based on possession. However, when the Land Registration Act 2002 (LRA) was passed, this introduced new rules. The brief facts were that Mr Best had noticed an empty and vandalised property while working on a property next door in 1997. is an experienced Massachusetts adverse possession and boundary line dispute attorney who has tried numerous adverse possession cases in Land Court and Superior Court. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. possession in case of illegal dispossession by a defendant whose title has been extinguished by virtue of the plaintiff remaining in the adverse . H… One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Although adverse pos­ses­sion claims are rare and hard to prove the deci­sion in McFar­land v Ger­tos does high­light how land can be lost to such claims when, for exam­ple, it has been over­looked by execu­tors of a deceased estate. Click play. (1995) 4 SCC 496, Where possession can be referred to a lawful title, it will not be considered to be adverse. Adverse possession; Case summaries; Law revision . In reaction to a recent adverse possession case, the Colorado legislature amended certain provisions of the Colorado Revised Statutes. adequate in continuity, nec clam i.e. (2007) 14 SCC 308, Adverse Possession – Open, uninterrupted, peaceful and hostile possession – Period of 12 years was completed – Whether the suit filed by the plaintiff was barred by limitation. In a relatively recent case in P.T. This adverse possession case did not involve a Gypsy or a Traveller but very occasionally you do come across Gypsies and Travellers who have been on land for many years where it is not clear who the owner of the land is. The findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable. The general rule of thumb is that to take an adverse possession case all the way to trial is going to cost each party $50,000. This article is not legal advice and the views and comments are of a general nature only. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. But the old law (see below) and the cases on it remain important when: (a) considering claims where the land is unregistered and/or (b) in seeking to establish what acts and how are sufficient for adverse possession. If you think your neighbor might be encroaching on … Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The doctrine of adverse possession provides that sometimes a trespasser can become a rightful owner. Adverse Possession . The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. The plea of adverse possession is not a pure question of law but a blended one of fact and law. There are a number of well-established principles of adverse possession in the leading authority of Abbatangelo v Whittlesea City Council (Abbatangelo).1 Laming v Jennings (Laming),2 heard in the County Court of Victoria in 2017 and in the Court of Appeal in 2018, confirms and expands the principles relevant to this area of law, particularly in respect of defending a claim for adverse possession. At the time of Mr Downie’s death, the Ash­bury prop­er­ty was sub­ject to a ten­an­cy in favour of a Mrs Grimes; she remained in occu­pa­tion of the prop­er­ty until short­ly pri­or to her death in April 1998. But, what I thought to suggest is that there must be some difference in spend which results in greater results. Moreover, he must continue 13 in that capacity for the period prescribed under the Limitation Act. Adverse possession cannot be decreed on a title which is not pleaded. Adverse possession of company land in Ireland is not an issue according to the PRAI. Examining recent adverse possession cases . The apex court also said that if such a person is being evicted from the land, he can also seek legal aid. In this lecture, I ... person entitled to the land in any case where such a finding is justified on the actual facts of the case." In the case of prescription, the true owner may still be in possession of the land (a situation that will prevent adverse possession from occurring), and yet the possessor may nonetheless acquire an easement, a lesser interest in the property. Manjit Kaur & others and two other cases delivered on August 7, 2019, has ruled that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, !963 to maintain a suit on aforesaid basis in case of infringement of any rights of a plaintiff. I know, sounds riduclous right? In oth­er words, it is essen­tial­ly a case of use it or lose it — to some­one who, under Tor­rens title, must then prove they should be reg­is­tered as the own­er instead. In two recent cases, the same 3-judge panel of the Massachusetts Appeals Court provided the latest words on the law of adverse possession. (E.g., Sorensen v. Costa, supra, 32 Cal. The reason being that a person whose possession can be referred to a lawful title will 7 not be permitted to show that his possession was hostile to another’s title. 790 : 2017 (2) CHN 58 : 2017 (6) CTC 195 : 2017 (5) JKJ 142 : 2017 (3) JLJR 53 : 2017 (2) KLJ 517 : 2017 (35) LCD 1112 : 2017 (4) MLJ … Adverse Possession – Rodamaker v. Biermann, No. The general rule of thumb is that to take an adverse possession case all the way to trial is going to cost each party $50,000. [2] There is, however, a method of preventing the acquisition of such an easement by prescription. Cases of adverse possession in the UK Mr Best v Chief Land Registrar. adequate in publicity and nec precario i.e. 448 : 2017 (122) ALR 887 : 2017 (3) ALT 17 : 2017 (3) Bom.C.R. The Iowa Court of Appeals recently affirmed a Winterset couple's right to ownership of an asphalt driveway and two carports through adverse possession. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. I know, sounds riduclous right? Ct. Sept. 23, 2015), offers a new twist on some black letter law pertaining to adverse possession of wooded areas.. As a reminder, to prevail on a claim of adverse possession, a plaintiff must … In two recent cases, the same 3-judge panel of the Massachusetts Appeals Court provided the latest words on the law of adverse possession. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. Liability limited by a scheme approved under Professional Standards Legislation. Plea of adverse possession is not a pure question of law but a blended one of fact and law. The Reg­is­trar-Gen­er­al indi­cat­ed his appli­ca­tion would be approved, but Mr Down­ie’s sur­viv­ing rel­a­tives (i.e. Adverse possession is a common occurrence in boundary line disputes. Whilst adverse pos­ses­sion claims (in par­tic­u­lar suc­cess­ful ones) are rare and involve a high­ly tech­ni­cal process, a recent deci­sion of the New South Wales Supreme Court of McFar­land v Ger­tos [2018] NSWSC 1629 demon­strates what can hap­pen if you do not ​‘use’ your land, in par­tic­u­lar when land has been over­looked by the rel­a­tives of a deceased prop­er­ty owner. Adverse possession has been described as a “debilitating ... Pye needs to be seen in isolation as a very unusual case. The home was then rent­ed out by Mr Gertos. It can only run against the freeholder after the Lease expires which if the term is 99 years could be a very long time indeed (46). Use it or lose it; a recent case on the law of adverse possession. 190 of 2020, A plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. Please contact me if you are dealing with a Massachusetts adverse possession … Cases of adverse possession in the UK Mr Best v Chief Land Registrar. 16-1102 In March, the Court of Appeals issued a decision involving a claim of adverse possession. Where it can be said that the accused was found in recent possession without explanation to trier of fact may , but not necessarily, draw the inference regarding the accused's role in the theft or related offences. The Court dealing with ADVERSE POSSESSION … Insights & events> Insights> Rectification vs adverse possession addressed in recent case 12 December 2018 The Court of Appeal has found that a registered proprietor whose title originates from a forged transfer is able to defeat an application for rectification based on adverse possession due to … (2006) 7 SCC 570, Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. C.A. Historically, adverse possession was obtained by the indirect effect of the Limitation Act 1980. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. These modifications create additional standards and requirements for claimants to obtain title to real property by adverse possession in addition to the prior common law and statutes. Nov 12, 2018 — Sean Greenwood, Associate. Manjit Kaur & others and two other cases delivered on August 7, 2019, has ruled that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, !963 to maintain a suit on aforesaid basis in case of infringement of any rights of a plaintiff. Supreme Court has held that the occupant can claim Adverse possession of land or property which has been in possession of him for 12 years or more without any interruption. In many areas of Pennsylvania, people occupy properties where title to the property is in dispute. In reaction to a recent adverse possession case, the Colorado legislature amended certain provisions of the Colorado Revised Statutes. Today I want to look at a recent Mississippi Court of Appeals case in which the appellant tried to use adverse possession to claim a possessory right in the land of his neighbors to the north. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The owner can take possession from a trespasser at any point in time. Adverse Possession The most basic definition of adverse possession is this: using another’s property as an owner would use it. _____ Richard D. Vetstein, Esq. Adverse Possession – Person who claims title over property on strength of adverse possession is required to prove his case only against true owner of property. Some recent cases are really important since they take the law in a new direction. 790 : 2017 (2) CHN 58 : 2017 (6) CTC 195 : 2017 (5) JKJ 142 : 2017 (3) JLJR 53 : 2017 (2) KLJ 517 : 2017 (35) LCD 1112 : 2017 (4) MLJ 150 : 2017 (3) PLJR 96 : 2017 (3) RCR (Civil) 246 : 2017 (136) RD 552 : 2017 (2) RLW 1140 : 2017 (5) Scale 22 : (2017) 13 SCC 705 : 2017 (5) SLT 433 : 2017 (4) Supreme 65, Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner. (1979) 4 SCC 274, Adverse Possession – “Classical Requirement” of – the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. Foremost among these is proving you have had factual possession of the land and that you had the intention to possess said land. The legal definition (and the elements that must be proven should there be a trial) is this: a trespasser is entitled to legal ownership of property if his or her occupation of the property is hostile, actual, open and notorious, exclusive and continuous for ten years. The case is … This case highlights that exclusion is not necessary for a successful claim of adverse possession. embodying both a right (the right to enjoy) and a fact (the real intention). Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The case of J A Rye (Oxford) Ltd v Graham applies to all cases of adverse possession. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. Listen to my recent radio appearance on boundary line disputes and adverse possession! Adverse possession: considerations for the neighbours. Adverse possession is linked to the principle of limitation of action (see s.15 Limitation Act 1980)but goes beyond this as the previous owners rights may be extinguished. In that regard, Mr Ger­tos, then an accoun­tant, was vis­it­ing clients in the street when he noticed the prop­er­ty, which he described as vacant and falling into disrepair. 2019 (13) Scale 663 : (2019) 9 SCC 369, The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. 1957 SCR 195. Numerous cases have since recognized that title by adverse possession may be acquired though the property was occupied by mistake. No. The case of J A Rye (Oxford) Ltd v Graham applies to all cases of adverse possession. The evidence of the defendants is that of continuous possession. ADVERSE POSSESSION Stephen Jourdan Introduction 1. (2019) SCC OnLine SC 1440 : 2019 (15) Scale 1 : 2019 (9) SLT 401, Adverse Possession – Meaning, nature and ingredients of – Necessary factors to be proved for claim of adverse possession. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Photo Credit: Jessica Steingard. The right to acquire adverse possession under the Act was negative in nature and, provided that 12 years’ possession could be established, the paper title owner could not reclaim their land. It is! Adverse possession, sometimes colloquially described as "squatter's rights", is a legal principle under which a person who does not have legal title to a piece of property — usually land — acquires legal ownership based on continuous possession or occupation of the property without the permission of its legal owner. But, what I thought to suggest is that there must be some difference in spend which results in greater results. The Courts in Ireland and England have in recent years considered several cases of equivocal acts claimed as adverse possession e.g. App. What appears on its face to be a temporary trespass may in fact constitute sufficient taking of possession for the purposes of adverse possession, depending on the nature of land in question and the manner in which land of that nature is commonly used and enjoyed. 4. If you have any queries about a legal issue or wish to talk to someone about a legal matter please get in touch and we'll contact you promptly. The case of Laming v Jennings is now the leading authority on how to successfully defend a claim for adverse possession. the grazing of cattle or other animals on lands is sometimes claimed as a ground for ownership of lands based on long possession. 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