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The Three Pillars of Adverse Possession

Posted on: May 22 2016

If you are considering making a successful adverse possession claim, here are the three key principles to consider, admirably stated by the Supreme Court Victoria – Court of Appeal in the 2009 Abbatangelo case.

  1. 1. Limitations of Actions Act 1958 (Victoria) ~ Adverse Possession

    1. Section 8 provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued.
    2. Section 18 provides that at the expiration of that period, the person’s title to the land shall be extinguished. As to when the right of action accrues,
    3. Section 9(1) refers to the date upon which the person whose title stands to be extinguished ‘has … been dispossessed or discontinued his possession’, whilst
    4. Section 14(1) provides that ‘no right of action to recover land shall be deemed to accrue unless the land is in possession of some person in whose favour the period of limitation can run.

 

2. Deemed Possession by owner of  paper title

In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

3. The Adverse Possessor must show –

  • to have both factual possession and
  • the intention to possess (animus possidendi).

Both elements must be satisfied –

Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

The animus possidendi, which is also necessary to constitute possession, … involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner.”

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Whittlesea City Council v Abbatangelo [2009] VSCA 188 (31 August 2009)

The above is an outline for making a case for adverse possession. The case of Abbatangelo provided a number of other principles and highlights which I have added to this paper – For further extended information

If you are a potential client looking for advice on adverse possession (making or defending a claim) you can make your inquiry here to make an adverse possession claim

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