In the recent case of McGrane His Honour Judge Cosgrave applied the principles for adverse possessions claims set out in the judgment of the Victorian Court of Appeal in Whittlesea City Council v Abbatangelo [2009] VSCA 188.
His Honour was satisfied that the McGranes had established that they had adversely possessed the subject land and that any paper title that the defendant formerly held to the land had been extinguished back in 2002 (15 years after the McGrane’s prior possessors, the Latchams, had taken possession of the subject land).
His Honour ordered that the McGranes were entitled to be registered as proprietors of the subject land.
The subject land in this case had been enclosed with the McGranes’ title land by timber paling fences and the wall of the neighbour’s brick garage, and had been effectively incorporated into the McGranes’ land and formed part of their garden. The only way to access the subject land was through the McGranes’ title land. The only persons to use the subject land were the McGranes (and the Latchams before them) and their respective invitees. The Latchams and then the McGranes used the subject land as part of their garden and two sheds were constructed on the land.
The Latchams and then the McGranes had treated their title land and the subject land as one property over which they exercised exclusive control. They dealt with the land as one would expect an occupying owner to deal with the land. Neither the Latchams nor the McGranes had acknowledged any other party as the owner or interest holder of the subject land, the Latchams ignoring communications received from the paper owner of the subject land to move the boundary fence to the title boundary.
His Honour held that the Latchams and then the McGranes had displayed both the factual possession and the requisite intention to possess necessary to succeed in adverse possession claims.
The facts in McGrane are like those in many adverse possession claims, where the subject land is fully enclosed with the claimant’s title land and effectively incorporated into the claimant’s land for over 15 years.
If you have a query about adverse possession please contact Fleur Craig at Armour-Craig Legal on (03) 5636 4986 or fleur@armourcraiglegal.com.au.