Adverse possession in NSW

[Propertunity]

I am interested in an Inner city property on old system title. It is a terrace in a row of terrace houses. My question relates to adverse possession.

The present owners have fenced off and put a roof over a pathway that runs down the side of the property. It has been like that since 2006 at least (survey makes mention of it). No-one uses it except for the present owners.

In NSW:
1. What is the minimum time period that needs to pass by, after which you can make a claim to keep the fenced off land under 'adverse possession'? (I had heard it was 12 years).
2. Does it matter who the owner of the pathway is? (I had been told that you cannot make an adverse possession claim on government owned land. Does council owned land count as government owned? ....and is it true that you can't claim anyway).

There are so many laws surrounding adverse possession and I don't know which would override another:
Real Property Act 1900 (NSW) Part 14A.
Encroachment of Buildings Act 1922 (NSW) to name just 2

Any solis want to comment?

 

[locko24]

I am interested in an Inner city property on old system title. It is a terrace in a row of terrace houses. My question relates to adverse possession.

The present owners have fenced off and put a roof over a pathway that runs down the side of the property. It has been like that since 2006 at least (survey makes mention of it). No-one uses it except for the present owners.

In NSW:
1. What is the minimum time period that needs to pass by, after which you can make a claim to keep the fenced off land under 'adverse possession'? (I had heard it was 12 years).
2. Does it matter who the owner of the pathway is? (I had been told that you cannot make an adverse possession claim on government owned land. Does council owned land count as government owned? ....and is it true that you can't claim anyway).

There are so many laws surrounding adverse possession and I don't know which would override another:
Real Property Act 1900 (NSW) Part 14A.
Encroachment of Buildings Act 1922 (NSW) to name just 2

Any solis want to comment?

Hi Propertunity.
Who's land would it be, if not council/govt? Can you really make an adverse possession claim on the neighbours land?

 

[Propertunity]

Who's land would it be, if not council/govt?

I suspect it belongs to council ....but perhaps (??) some common land owned jointly by all the terrace house owners (but I suspect not). The contract of sale is one of the most complicated I have ever seen.

Can you really make an adverse possession claim on the neighbours land?

Under old system title, my understanding is yes, in NSW. I think it was extinguished in Victoria in 2005 ??

It is very interesting from a legal standpoint ...not so much from a "buying the property and understand what I am actually buying" perspective.

 

[Terryw]

Hi PU

I don't know anything about adverse possession. We skimmed over it in law school but it is very rare to come across in practice.

There is a lot of case law on this area.

It is 12 years in NSW, I think it comes under the Limitations Act.

There are requirements such as:
Must be open, not secret;
peaceful, not by force;
adverse, not by consent of true owner.

There must be an intention to possess to the exclusion of others.

There are a lot of cases involving those old little lanes that they used to have behind houses.

 

[chilliblue]

If this does not help it should lead you in the right direction.

http://rgdirections.lands.nsw.gov.au/deposited_plans/boundary_definition/os_boundaries

 

[Terryw]

Re Crown Land

CROWN LANDS ACT 1989 - SECT 170

Limitation on acquisition of title by possession against the Crown

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla1989134/s170.html

 

[Terryw]

LIMITATION ACT 1969 - SECT 65

Property
http://www.austlii.edu.au/au/legis/nsw/consol_act/la1969133/s65.html

 

[Propertunity]

Thank you Terryw and chili. It is indeed 'one of those old little lanes that they used to have behind houses" as well as a pathway at the side.