Squatter’s rights appeal case

ROBERT owns a property that shares a common boundary with a property owned by Andrew.

Andrew’s property is burdened by a right-of-way which was established to enable access for a night soil carter to collect waste from outhouses many years ago.

The right-of-way is no longer able to be used due to various fences that have been erected over the years.

In 2005, Robert undertook renovations on his property and erected a fence, incorporating the right-of-way into his backyard and closing-off access to Andrew.

He erects a barbecue area on the right-of-way.

When Andrew sells his property, the purchasers realise that their property should include the area designated as the right-of-way and they ask Robert to remove the barbecue area and the fence.

Robert commences proceedings, claiming that the purchasers are statute barred from reclaiming the land on the basis that he has been in “adverse possession” for more than 12 years.

The trial judge makes orders in Robert’s favour to the effect that he is entitled to become the registered proprietor of the right-of-way area by way of “possessory title” at common law.

Andrew appeals the decision.

The Court of Appeal finds that Robert’s creation of the barbecue area and the storage of garden equipment on the right-of-way constituted taking possession of the property and upholds the trial judge’s decision on the basis that adverse possession is an exception to the principle of “indefeasibility of title”.

Andrew also claimed that his bank, as the holder of a mortgage over the property, should have been notified of Robert’s claim.

The Court considers that any reduction in value of Andrew’s property was minimal and that any defence to Robert’s claim on that basis would not be successful.

If YOU would like a particular issue addressed, please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.