Adverse possession?

muffler · 14-07-2015 12:11pm #1

If a person wants to claim adverse possession to a particular piece of property how exactly does the 12 year rule work in relation to the said property if there has been more than one "owner / occupier"?

I'm talking specifically about a small strip of ground that was originally planned as an area of open space in a housing estate. The first owner of a new house adjacent to the open space approached the developer at construction stage or just before he moved in and asked for a piece of this "open space" to be incorporated into his side garden and that was agreed verbally and the house owner fenced off the strip of ground concerned. Just to note that nothing was ever mapped / transferred in this instance.

The house was subsequently sold several years later and the current owner now has the use of the strip of ground. The original developer or rather his company has since went to the wall. The local council will probably be taking over the maintenance of the estate/services in the near future So does this 12 year condition apply specifically to a single person or does it apply from a certain time regardless of how many owners there have been of the adjacent property?

Any and all opinions welcome

mrjoneill · 14-07-2015 1:18pm

My understanding of adverse possession is that the possession must be exclusive possession for those 12yrs (20yrs local authority property) in that the possessor has maintained exclusive control over this. I also understand the adverse is not necessary in that there is no need for it to be adversarial in that of keeping the rightful owner off the property. I understand at one time the courts interpreted that if the legal owner allowed occupation the possessor could never claim the possession was adverse. I also understand that the occupation right can be assigned or continued from the previous occupiers.

MarkAnthony · 14-07-2015 8:30pm

It a relatively complex area and each case turns on it's own facts but here's my, probably faulty, take.

It's a shield not a sword for the most part. It's more that other parties are barred from suing you for trespass/the land back after 12 years, 30 years in the case of foreshore and Local authority land IIRC. Once the 12/30 years has passed title can be registered but from many accounts it's an expensive and uphill battle.

Occupation can indeed be passed and frequently is where the previous owners of a house, say, would give a declaration to a piece of land being used exclusively by them for the last X number of years.

Possession has to be adverse, e.g. any hint of permission such as in your case stops the clock running. AP claims are easily defeated, IIRC in one case simply looking over the fence from the road once was enough to start the clock running again.

Drumpot · 21-08-2017 7:00pm

Sorry to drag this up but it suggested in OP to search to see if your question has been answered.

My query is slightly different. I've lived in a house for 11 years but have been taking care of the land on front of my house (would normally be people's parking space or front garden. I plan on putting up a wall for numerous security reasons.

My intention was always to claim ownership once I hit the 12 year mark. Prob a few neighbours would be looking to do the same.

However, I think the land is technically owned by the management company (that's long gone). Residents haven't submitted a request for council to takeover estate so that's not happening anytime soon.

I will be getting legal advice on this (discussed it a few times with my cousin solicitor) but just curious if anybody has any stories or insight into potential issues or ducks I should be looking to row up!

surrender monkey · 21-08-2017 9:29pm

Drumpot wrote: »

Sorry to drag this up but it suggested in OP to search to see if your question has been answered.

My query is slightly different. I've lived in a house for 11 years but have been taking care of the land on front of my house (would normally be people's parking space or front garden. I plan on putting up a wall for numerous security reasons.

My intention was always to claim ownership once I hit the 12 year mark. Prob a few neighbours would be looking to do the same.

However, I think the land is technically owned by the management company (that's long gone). Residents haven't submitted a request for council to takeover estate so that's not happening anytime soon.

I will be getting legal advice on this (discussed it a few times with my cousin solicitor) but just curious if anybody has any stories or insight into potential issues or ducks I should be looking to row up!

If the management company is dissolved then the land may be vested in the Minister for Finance under S28 of the State PropertyAct 1954. A waiver over the lands can be applied for not sure if it would be granted though

Peregrinus · 22-08-2017 3:11am

Drumpot wrote: »

Sorry to drag this up but it suggested in OP to search to see if your question has been answered.

My query is slightly different. I've lived in a house for 11 years but have been taking care of the land on front of my house (would normally be people's parking space or front garden. I plan on putting up a wall for numerous security reasons.

My intention was always to claim ownership once I hit the 12 year mark. Prob a few neighbours would be looking to do the same . . .

Much depends on what you mean by "taking care of" the piece of land in question, but simply, e.g. mowing the grass, planting flowers or marking the edge by placing stones are not enough to give you a possessory title. You need to be in exclusive possession. You might do this by, e.g, fencing it off, or planting and harvesting crops, or letting it out and (successfully) collecting rent from the tenants.

Victor · 22-08-2017 7:20am

That it isn't fence off might be an issue.

surrender monkey wrote: »

If the management company is dissolved then the land may be vested in the Minister for Finance under S28 of the State PropertyAct 1954. A waiver over the lands can be applied for not sure if it would be granted though

Doesn't being state lnad increase the adverse possession requirement to 20-30 years?

surrender monkey · 22-08-2017 7:49am

Victor wrote: »

That it isn't fence off might be an issue.Doesn't being state lnad increase the adverse possession requirement to 20-30 years?

Yes, 30 years for state property, but in cases where a body corporate is dissolved and the land is vested in the minister it is possible to apply for a waiver over the lands.

Drumpot · 22-08-2017 9:31am

I don't think the MC has been dissolved (nobody is looking after it AFAIK).

Just to be clear, if I build a wall and a gate, it would look like I live in a semi detached house that always had it on the front. I actually spoke with a local councellor who, without guaranteeing anything, said that over time it prob shouldn't be an issue. I spoke with a friend who is a solicitor who said if no party objects it might be possible.

The way I am taking it , put up the wall (like most neighbours are doing at this stage), worse case scenario is that the council force it to be taken down. If I am selling house at any stage, it may be an issue if I have not resolved ownership of this area, but I will deal with that if I have to. At a future date I will simply try and get it added to the deeds.

Mr. Incognito · 22-08-2017 10:21am

Adverse possession is a mare.

It is impossible to claim.

Register Possessory Title in the Land Registry and when the requisite period of time has passed then its easy to claim

Outside of a large discussion on animus possendi I think that's the best advice you can get.

Adverse possession?

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