adverse possession

W

wandillup

Hi all
My question relates to part parcel adverse possession.
Here are the circumstances surrounding the dispute.
We have lived continuously on a 48 Ha property in rural WA since 1985.We have been sole proprietors since 1997 prior to that my parents were also on the title.
The block has a bitumen road along one edge with a 90 Ha block(separate title) on the other side which until recently was a pine plantation which was established before we lived there and was owned by one person.
The pines were cleared in 2011 and the block bought by a neighbour who discovered that about 1.6 Ha was actually on our side of the road.
My questions are this-does the new owner have a right to compensation for the parcel and does he have any right to recover the area.Also do you think we have a chance of a successful adverse possession application given that the previous owner hadnt exercised his right of recovery inside the 12 year limitation period which applies in WA.
I guess what i,m asking is this-are recovery rights extinguished if a 12 year period of continual occupation has occured.
Hoping someone can advise.
Thanks
 
Welcome to the forum Wandillup. I have been in a similar situation and you have my sympathy. You clearly need a competent lawyer who has expertise in land-law issues. This will rule out most cornerstore lawyers who will no doubt promise the earth but charge you hundreds of dollars for each hour of reading time.

Sadly, the larger firms will rape you for fees. Make sure you get all invoices taxed so you are not overcharged. Your first appointment should be free.

I wish I could give you a recommendation but I've found most of the lawyers I have dealt with to be rapacious and not worth the bother - they charge usurious fees for outcomes that you could obtain yourself by talking it out with your neighbour.

Aaron Sice, one of this forum's respected elder statesmen, he may be able to recommend a WA lawyer. Maybe PM him? Hope you don't mind the intrusion Aaron.

Another forumite, the very amiable CU @ the Top is a Qld based lawyer. He may have some general ideas about your rights. Unfortunately he is too far away from WA to represent you.

Can anybody else help Wandillup?

Good luck - hope it works out.
 
wandillup said:
Hi all
My question relates to part parcel adverse possession.
Here are the circumstances surrounding the dispute.
We have lived continuously on a 48 Ha property in rural WA since 1985.We have been sole proprietors since 1997 prior to that my parents were also on the title.
The block has a bitumen road along one edge with a 90 Ha block(separate title) on the other side which until recently was a pine plantation which was established before we lived there and was owned by one person.
The pines were cleared in 2011 and the block bought by a neighbour who discovered that about 1.6 Ha was actually on our side of the road.
My questions are this-does the new owner have a right to compensation for the parcel and does he have any right to recover the area.Also do you think we have a chance of a successful adverse possession application given that the previous owner hadnt exercised his right of recovery inside the 12 year limitation period which applies in WA.
I guess what i,m asking is this-are recovery rights extinguished if a 12 year period of continual occupation has occured.
Hoping someone can advise.
Thanks
Click to expand...

Adverse possession is pretty rare. Not many lawyers would have experience in it. But it would be nothing difficult - look the legislation, case law and decide whether you have a case or not. Then lodge a statement of claim in the supreme court of wa.

the possessor would have to be in possession adversely for about 10 to 15 years continuously.


First meeting should not be free in my opinion. but you could do some research yourself by grabbing a law text book on land law - which will probably cost almost the same as a 1 hour consultation with a lawyer.
 
Terry_w said:
Adverse possession is pretty rare. Not many lawyers would have experience in it. But it would be nothing difficult - look the legislation, case law and decide whether you have a case or not. Then lodge a statement of claim in the supreme court of wa.

the possessor would have to be in possession adversely for about 10 to 15 years continuously.


First meeting should not be free in my opinion. but you could do some research yourself by grabbing a law text book on land law - which will probably cost almost the same as a 1 hour consultation with a lawyer.
Click to expand...

Thanks for helping out, learned friend. :)

Some community legal centres may be able to help to some degree.
The OP could start his research by going to a law library in Perth. Murdoch University and UWA allow people to come in and make as many photocopies as they wish. The Library at the Supreme Court is also helpful if you approach them nicely.

http://www.wikihow.com/Obtain-Adverse-Possession-in-Australia
https://eprints.usq.edu.au/6201/3/Simmons_SSC2009_PV.pdf

Good luck!
 
Adverse possession is notoriously hard to prove - if it wasn't then there would be applications flying left right and centre. Consult an expert.
 
Thanks all for your responses and advice.In answer to Starter the neighbour
approached us some time ago saying he didnt want the parcel of land just financial compensation for it.he was told in fairly clear language that was not an option for us.He has since had the area surveyed with a view to fencing it off.Research i have done and correspondence with Landgate suggests we have a fairly solid case for a claim to succeed
 
Just a further point to note on the issue of adverse possession in WA claims are submitted to Landgate for consideration.I guess previous cases have ended up in the courts because one party didnt like the umpires decision.
We intend to pursue the issue which involves many declarations and evidence gathering actions to bolster our case.
Again thanks for the support
 
wandillup said:
Just a further point to note on the issue of adverse possession in WA claims are submitted to Landgate for consideration.I guess previous cases have ended up in the courts because one party didnt like the umpires decision.
We intend to pursue the issue which involves many declarations and evidence gathering actions to bolster our case. Again thanks for the support
Click to expand...

Once you have read some of the stuff above, go to www.austlii.org

Since 1997, all cases in the Supreme Court of WA are reported in austlii.

Familiarize yourself with precedents and the law etc.

Arm yourself with knowledge before meeting your lawyer. If you don't tell your lawyer exactly what you want (and why you believe you are entitled to it) you may well be be led up the garden path. Once again, make sure all invoices you get from your lawyer are taxed. There's no point in winning a pyrrhic victory.

Good luck!
 
Have I got this right: you've been living on land since 1985 and only just worked out that the boundary wasn't where you thought it was.

IMHO, spend money on a surveying and fencing, not lawyers.
 
vaughan said:
IMHO, spend money on a surveying and fencing, not lawyers.
Click to expand...

It's more common than you think. I have a 1920s property in the USA which I bought at a bank auction. Turns out the neighbours have their garage on my land. It's been there for 50 years. They never even realized it until I organized a survey of my own.

Surveying techniques in the old days were nowhere as accurate as they are today.
 
I have no experience in land disputes and in no way pretend to know what I am talking about ...

... however ....

the thing that stuck me was that the OP owned both parcels of land - 48ha and 90ha on separate titles. He lives on the 48ha block, but not on the 90ha block - although they are adjoined.

The 90ha block was sold and - at the time - included just over 1ha on "his" side of the road.

I don't understand what the problem is and why there would be any case for adverse possession as the land was sold only 2 years ago, and the OP doesn't live on that particular 1ha parcel.

As a common sense layperson (unfortunately common sense is not that common) it looks to me like the purchaser bought the 90ha, including the 1ha parcel. It is the purchasers' land and it is his choice to keep it or sell it - perhaps back to the OP.

The purchaser cannot "demand" compensation for the land, but can fence it off from use by others.

I cannot see why adverse possession would be applicable because it was only recently sold - not 15 years ago - and the OP doesn't live on that particular piece.

Why - after selling 90ha of land, is there not any cash left to buy 1ha back at the selling price (1/90th)?

But - read up and get some proper advice - just don't expect it to go your way.
 
One_World: I'm suggesting that the OP get their own survey done before doing much else.

I've read part of that paper done by Malcolm McKenzie PARK. My take is that the author is not an advocate of adverse possession changing boundaries, instead recommends easements and other legal instruments be used to record interests on the registered title where the encroachment is something substantial like a building. Where the encroachment is not substantial there should be no change of boundary and usage should revert to that documented in the registered title. That is, the registered boundaries be respected and the trespasser GTF off the land. (My words, not those of Mr Parks.)

Lizzie: my take was that the OP owned 48 Ha and the adjoining property is 90 Ha owned by somebody else. A road is close to the boundary of the two blocks but not exactly on it, so there is 1.6 Ha of the 90 Ha block adjoining the 48 Ha block.

[BLOCK_1][BLOCK_2] road [BLOCK_2]

Note: diagram above is not to scale.

The 90 Ha block was used as a pine plantation, and for convenience pines were never planted on the 1.6 Ha part on the other side of the road probably because to was too narrow to bother with. Because it was a pine plantation the owner probably hasn't looked at it for many years because there isn't much to do except wait for them to grow. In 2011 the pines were harvested and the owner sold the block. New owner got it surveyed, realised that part of their land is on the other side of the road adjoining the OP's and has offered to sell it to them. The OP has refused to buy something that they assumed was theirs, and wants to claim adverse possession.

The OP's family has assumed that the road was the boundary and the 1.6 Ha on their side of the road was their land.
 
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Vaughan you 100% correct in surmising of the situation.the area in question is approximately 500m long by 80m wide at its widest point in a elongated diamond and as you suggested was too narrow to plant trees on.Malcolm Parks thesis in think tries to explore the use of adverse possession as tool to resolving boundaries which in Australia is not allowed for uniformally across all state/territories.
My father bought the land when it was all pines in the early 1980,s and was aware of the anomaly in the boundaries.
Local governments also have a role to play in preventing disputes like this arising.the reason for the incorrect boundary position in this case is that the shire many years before moved the road alignment to create this diamond shaped parcel of land on my side of the road.Maybe it should be incumbent on them to realign the boundaries as well.
I am better placed than some having a lawyer daughter who while not currently practising has some useful contacts.
 
wandillup said:
My father bought the land when it was all pines in the early 1980,s and was aware of the anomaly in the boundaries.
Click to expand...

Is there an anomaly in the boundary? A road dividing a parcel of land would NOT be be considered an anomaly IMHO.

I don't think there is really a dispute either: the land is your neighbour's. If you knew where the boundary was but used the land anyway then you have been trespassing.

Other discussions on adverse possession usually consider who has been paying rates and taxes on the land. If the neighbour has been paying them then the land has not been abandoned or anything like that, so a claim for adverse possession is pretty weak.

My take is that adverse possession was useful at a time (in the distant past) when land titles did not exist, and occupation was given preference. The survey and registration of titles was developed to get rid of this.

Park's documents mentions the difficulty in trading land if occupation is the main indicator of ownership rather than registered titles. If occupation is the deciding factor then pre-purchase inspection is required to determine whether the person you're buying the land from is really the occupier, but this is no guarantee of real ownership because the person occupying might be a squatter who is in the process of claiming adverse possession from somebody else. Thus it becomes turtles all the way down. With land titles, the ownership of these titles is the determining factor for ownership of the land rather than occupation. If you own the title then you own the land: if somebody is on it then they are trespassing, no grey areas.
 
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