Bringing an Adverse Possession Claim in Western Australia

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Recently, the New South Wales Supreme Court awarded a Sydney property developer a family home under squatter laws. The following article will delve into how to bring an adverse possession claim in Western Australia.

What is Adverse Possession?

Adverse possession is an ancient legal doctrine, where an individual who trespasses on land owned by another individual (an “adverse possessor”), may claim title to it if particular common law and statutory requirements are met.

Where adverse possession is established,[1] the rights of the registered proprietor have lapsed, which means that the adverse possessor has an interest in the land which will defeat any subsequent strata titles.[2]

Claiming Adverse Possession in Western Australia

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,[3] the ‘adverse’ occupier is eligible to make an application to the Commissioner of Titles that the land they are occupying be transferred to them.[4]

To ensure your claim is successful, a few criteria are must be met.

Actual Possession

The ‘adverse’ occupier must have actual possession, which means physically occupying the land, and acting as though one owns the property as their own.[5]

Continued and Uninterrupted Possession

Secondly, the occupier must have continuous and uninterrupted possession. This means that occasional occupancy combined with periods of inactivity will not amount to fulfilment of this criteria.

Interestingly, time can be accumulated through different but consecutive adverse possessors, to equate to 12-year minimum limitation period.[6] However, only the most recent possessor can apply for title.

Hostile and Exclusive Possession

Possession must also be hostile and exclusive. This means that possession of the property is without the permission of the legal owner, excluding them from the use of the property.[7]

Open and Notorious Possession

Lastly, the adverse possessor must have open and notorious possession, which requires obvious and visible use of the land.

Private versus Government Land

Whilst private land only requires an uninterrupted and exclusive possession for a period of 12 years unless an exception applies, a person cannot acquire Crown land by adverse possession.[8]

Exceptions

Where the registered proprietor has a specified form of disability, or it cannot be proven that there was no disability at the time the possession commenced, a period of 30 years is required to adversely possess.[9]

McFarland v Gertos

In a case recently decided by Justice Darke of the Supreme Court of NSW,[10] a property developer in Sydney was granted ownership rights of a property in Ashbury, Sydney.

In this case, the passing of the registered proprietor, Mr Downie, and the absence of a will left the property abandoned. After entering the property in 1998, Mr Gertos incurred expenses renovating the property which included changing locks, and spending approximately $135,000 on repair works to improve the property over. Within weeks of his first entry, he signed a lease of the property as a landlord, and paid relevant outgoings including water, council rates and land tax.

In 2016, under relevant NSW ‘squatter’ laws, Mr Gertos made an application under s 45D of the Real Property Act (NSW) to extinguish Mr Downie’s original title. The plaintiffs, Mr Downie’s daughter and granddaughters were granted an injunction to inhibit this action. However, their claim was not successful. Justice Darke was satisfied that Mr Gertos had fulfilled the criteria to successfully claim adverse possession and granted him title. [11]

Lessons for Land Owners

Whilst the manner in which the claimant went about adversely possessing the property in this instance was brazen, adverse possession can occur in subtler ways and it is important for land owners to take steps to mitigate against this risk.

 

[1] Section 65 Limitation Act 2005 (WA).

[2] Nickola Petkov v Lucerne Nominees Pty Ltd (unreported) Supreme Court of Western Australia No 1060 of 1989, Murray J.

[3] Where the cause of action accrued before 15 November 2005, the Limitation Act 1935 (WA) applies. Where the cause of action accrued on or after 15 November 2005, the Limitation Act 2005 (WA) applies.

[4] Section 222 of the Transfer of Land Act 1893 (WA).

[5] Powell v McFarlane (1979) 38 PC&R 452.

[6] Asher v Whitlock (1865) LR 1 QB 1, Allen v Roughly (1955) 94 CLR 98 and Goodwin v Western Australia Sports Centre Trust [2014] WASC 138, (EM Hennan J).

[7] Clement v Jones (1909) 8 CLR 133, (Griffiths CJ); J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419.

[8] Section 36 of the Limitation Act 1935 (WA); Section 76 of the Limitation Act 2005 (WA); Goodwin v Western Australian Sports Centre Trust [2014] WASC 138.

[9] Section 35 of the Limitation Act 2005.

[10] McFarland v Gertos [2018] NSWSC 1629

[11] Darke J referred to Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch) at [33] for this point.

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