Adverse Possession Hypothetical Question and Answer Guide PDF

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Adverse Possession Hypothetical Question and Answer Guide...

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PROPERTY LAW Autumn 2018 Possession and Title: Land

GUIDE TO STRUCTURING AN ANSWER TO ADVERSE POSSESSION PROBLEM (This guide uses an IRAC (Issue, Rule, Application and Conclustion) structure. Please note that IRAC is not required and the best answers don’t follow this model but it may help you plan and prepare your notes.) The Problem Question: The ‘Big Wheels’ partnership (Alf, Bert and Clarrie) needed some land for their Bicycle race venture. In 2011 they purchased a farm called “High Hopes” from Zac. The land was near Mt Stromlo and bordered Dog Rocks State forest. Big Wheels decided to build a café on its land ‘High Hopes’. On a survey of the two possible sites for the café, it was revealed that one area formed part of the State forest and the other was a lot registered in the name of Bloggs. Bloggs had been the registered proprietor since 1984. Bloggs had never been interested in using the land as he enjoyed the city life. Zac had owned ‘High Hopes’ since December 1986 and since that time, he had used the whole area, including the State forest and the land of Bloggs, for his beef cattle farming operation. The entire area was enclosed within one fence and although Zac knew there was “something peculiar about the boundaries”, he basically thought he was entitled to the land enclosed and used it all as his own. Because of the element of confusion surrounding the boundaries, Zac’s solicitor advised him at the time of the sale to Alf, Bert and Clarrie that he should transfer formally to them any possessory interests he might have. This was done. Bloggs had suffered a fundamental breakdown in December 1996 and could not manage his own affairs. In January 2012 Bloggs won Tattslotto and suddenly recovered. He has been flying around the world and catching up on his lost years ever since. In 2014, tired of travel and living the high life, Bloggs decided to visit his lot of land at Dog Rocks. At that time he noticed that someone’s cattle were grazing the land. Bloggs spoke to Bert and said ‘you know this is my land? You will need to move your cattle off it’. Bert replied, ‘don’t worry, they will be going soon’. When Bloggs returned to the city he made the decision to gift his land at Dog Rocks to the Lost Dogs’ Home. The Lost Dogs’ Home was registered as proprietor of the lot in February 2015. In May 2015 the Lost Dogs’ Home wrote to Big Wheels advising them that as the new proprietor of the land it was going to build some dog kennels and that fencing would need to be put up along the boundaries. The Lost Dogs Home also demanded that the cattle be removed immediately. Alf, Bert and Clarrie come to you seeking advice about their rights and what they should do now (all pieces of land are Torrens system land). Preliminary matters that can assist: 1. Draw the scene (ie the different lots of land and any boundaries or other features) and make a note of the parties, dates, and relevant transactions and/or events. Eg: Blogg’s Lot:

1984 Bloggs was Registered Proprietor (RP) May 2015 Lost Dogs’ Home RP (Bloggs donated)

High Hopes:

December 1986 Zac was RP 2011 BigWheels purchased from Zac

STRUCTURING YOUR ANSWER

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DISCLAIMER: This is an outline only. It is in note form. The purpose is to assist you with structuring an answer through the identification of various issues. In other words, it is not written as the ‘answer’ to the problem. Each problem question will, of course, differ in the issues raised and this may suggest a different structure in terms of the order of issues and emphasis on different issues: This is why the ‘Application’ section is key to any legal problem solving exercise. (Of course, you need to be able identify the legal principles as well!) So, how do you identify the significant legal issues? In this case, you have two parties asserting rights to land. What are the possible bases of their claims? You need to work through all the steps. So, on the facts it looks like BigWheels has possession of Bloggs’ Lot – but BigWheels is not the registered proprietor of the Lot (that was Bloggs and then the Lost Dogs Home). The issue is does BigWheels have possession and, if so, has it established a better title than Bloggs/LDH. Issue 1: Does BigWheels have possession? Rule: Possession by a person (other than the true owner) requires actual possession and intention to possess (Pye v Graham (HL); Abbatangelo etc.) Sub-rule: Actual possession – then explain further from the cases what the rules means. Eg, ‘an appropriate degree of physical control’; it must be single and exclusive (ie not shared with the true owner); the necessary control will depend on the circumstances – the ‘nature of the land and the manner in which land of that nature is commonly used or enjoyed’ (Slade J in Powell’s case, approved in Pye) Application: Here you consider the relevant facts from the problem: eg. Consider nature of land and activities – Rural land, beef cattle, land fenced (the fence does not appear to be ambiguous in the sense that it is merely to keep the cattle in: See further Abbatangelo. Sub- rule: Intention to possess Sub-rule: As above, explain further from the cases what the rule implies. Eg, ‘intention may be deduced from the physical acts themselves’ (Pye). See the statement from Powell’s case again – ‘an 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 process of the law will allow’ (give ref). Consider whether the squatter would be able to bring an action in trespass against a stranger who entered the property. Intention is intention to possess, not to own (Pye; Abbatangelo); does not have to be inconsistent with intentions of paper owner (etc); offers to pay money do not negate intention, etc. (see also principles listed in Abbatangelo) Application: It appears that Zac and then BigWheels have used the property as an owner of a farm would. The facts refer to Zac’s ‘beef cattle farming operation’. BigWheels were doing the same in 2014 when Bloggs first visited. Although it is mentioned that Zac was a bit ‘unsure’ about the boundaries he has treated all the land as his own. It clearly doesn’t fit a description ‘of casual acts of trespass’ through occasional grazing of cattle (as discussed in Abbatangelo at [p. Textbook] etc) It doesn’t matter that Bloggs had no interest in dealing with the land. Conclusion: On the facts it appears that BigWheels is currently in possession. Possession gives a good title against the whole world except someone with a better title, eg a prior possessor or the true owner: Asher v Whitlock; Perry v Clissold (HCA). [With Old System Title a possessory title may, over time, become the best title if the previous possessor or ‘true owner’ is statute barred from bringing an action to recover the land. For Torrens title Land in NSW we need to consider the application of the Real Property Act 1900 – see below). Issue 2: Is Bloggs/LDL statute barred from bringing an action against BigWheels? (Or, to put it another way, is BigWheels entitled to apply for possessory title under the RPA?) To determine this we need to consider the application of the Limitation Act 1969 (‘LA’)

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Subrule: In general, the limitation period (for persons other than the Crown) in relation to actions to recover land is 12 years: LA s 27(2). [nb, this applies to the plaintiff or a person claiming through the plaintiff] [You then need to work out when times starts and stops running. ] Subrule: Time starts running depending on whether a person is presently entitled to possession (s 28) or whether the nature of their interest comes within other specific categories (eg future interests, equitable estates etc). PLUS Someone in adverse possession: LA s 38(1) Again, you can explain the rules further – eg, if someone is in possession without permission then the true owner has been dispossessed: Pye. Application: Bloggs was the Registered Proprietor of the Lot. He had an immediate right to possession from that time (so, s 28 applies). Zac appears to have possessed the land since 1994 (as discussed above). Was it adverse (s 38 LA)? No licence ever given by Bloggs. The possession was also open, peaceable and without permission (Mulcahy v Curramore). From the facts it appears that a cause of action accrued to Bloggs as soon as Zac went into possession – ie. Bloggs would have been able to maintain an action for possession from that time. Issue: Successive adverse possessors: Zac and Big Wheels? Bigwheels has only been in possession since 2011 can it add the prior possession of Zac? Rule: Section 38(2) of the LA provides that periods of adverse possession can be added up. Application: On the facts there have been no interruptions to possession. Zac expressly transferred any possessory interest he had to BigWheels but even if this hadn’t occurred BigWheels could still rely on Zac’s prior adverse possession (Asher v Whitlock). Conclusions: BigWheels can rely on Zac’s previous adverse possession in the running of time. Issue: Have there been any interruptions or extensions to the running of time? Rule: Time may be interrupted or extended according to the LA. Subrule: to s 52.

In the case of disability (as defined in s 11(3) LA) time may be extended according

Application: From the facts it appears that Bloggs was under a disability between December 1996 and January 2012. According to s 52(1) Bloggs had a cause of action at the time of the disability, the limitation period had commenced to run and he was under a disability. In that case s 52(1) provides that (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person’s death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. At the time of Bloggs’ disability 10 years had run. That means that at the time his disability ceased the usual limitation period would have elapsed in another two years. The section means that Bloggs would have 3 years from the end of his disability in January 2012.

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Conclusion: Time would have been extended until January 2015 unless there were any other interruptions to time. Issue: Did BW confirm Bloggs’ title and therefore stop time running? Rule: Section 54 LA deals with this situation. Application: In this case BW’s comments are not sufficient to amount to a confirmation of Bloggs’ title. There were not put in writing or signed – as required by s 54. Issue: Did time stop running when Bloggs asserted his title to the land? Rule: [you can work out the rest] Issue: Does the transfer of Bloggs' Lot to the Lost Dogs Home in May 2015 effect BigWheels’ claim? And what is the relevance of the land being Torrens Title? Rule: Section 45C of the Real Property Act 1900 provides that a true owner’s title is not extinguished automatically by the passage of time (in contrast to old system title). However, Part 6A of the RPA provides limited grounds where a person may make an application for title by possession. The meaning and application of s 45D would need to be discussed. Eg, from the facts it appears that BigWheels has been in the possession of a whole parcel of land (Bloggs’ lot). The main issue is the application of s 45D(4) which provides that: (4) A possessory application may not be made in respect of an estate or interest in land if: (a) the registered proprietor of that or any other estate or interest in the land became so registered without fraud and for valuable consideration, and (b) the whole of the period of adverse possession that would be claimed in the application if it were lodged would not have occurred after that proprietor became so registered, unless the application is made on the basis that the estate or interest applied for will be subject to the estate or interest of that registered proprietor if the application is granted. The Lost Dogs home only became registered in 2015 so clearly 12 years has not run against them. What, if any, is the relevance of the fact that Bloggs donated the land? Does it matter that the LDH did not provide valuable consideration as is implied by s 45D(4)? [Please note there are some further issues here relating to the status of the registered title of ‘volunteers’ (ie people who do not purchase for value, also known as ‘donees’). You would not be expected to develop an argument here at this stage of the Unit. This is covered in a later topic on indefeasibility of Torrens title, exceptions and volunteers.]

OVERALL CONCLUSION: Do Big Wheels have a possessory interest? Yes (and it would be good against all third parties). Is BigWheels entitled to apply for a possessory title under the RPA? If s 45D(4) does not rule out BigWheels’ ability (as against the LDL) then, yes (but note warning above that this might not be the actual outcome).

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