Relativity Title and Adverse Possession

Question 1

What is the Principles of Possession?

Answer 1

• Fact of Possession itself creates a properietary interest in rem
• Earlier possessory rights take priority over later ones
• Possessory interests can be transferred (gifted, sold, inherited)
• Possessory rights more powerful than property rights
• Possessory rights can exist for ‘real’ and ‘personal’ property

Question 2

How does the Hierachy of Title work?

Answer 2

1. OG Owner has the ‘proprietary title’ + Posessory has the ‘possessor title’
2. Proprietary title > Possessory Title
3. Earlier possessory title is SUPERIOR to later possessory title

Question 3

What is Adverse Possession?

Answer 3

• Acquiring legal ownership of someone else’s property on the basis that the land has been continuously possessed by someone else for a specified amount of time

Question 4

How long can you claim back your land if someone has taken possession of property?

Answer 4

15 years

Question 5

What are the Exclusions for adverse possession?

Answer 5

• ANY public land/Crown land cannot have adverse possession
• If Public land has been transferred to private individual/party –> period of 15yrs starts from date of transfer

Question 6

How can someone claim ‘Adverse Possession?’

Answer 6

1. Possession must be continuous, uninterrupted and exclusive
   –> CANNOT abandon land + TREAT land like you owe it
   –> Must show there was intention to possess land

Question 7

What are 2 reasons for a 15 yr clock to stop ticking?

Answer 7

1. Owner may repossess the land
2. Property must be abandoned

Question 8

What are the 3 types of adverse possession?

Answer 8

1. Factual possession –> staying + treating like your land
2. Intention to possess –> Needs intention to possess
3. Abandonment –> Both factual/intention MUST have cease

Question 9

What are 3 ways Proprietors can do to prevent Adverse Possession claim?

Answer 9

1. Injunction to recover land from possessor
2. Possessor acknowledges in WRITING superior title of owner
3. Formalising agreement w possessor

Question 10

What if a Possessor only uses a part of the land?

Answer 10

• Possible to make adverse possession claim over a WHOLE PARCEL of land

Question 11

What are strong indicators of an adverse possession claim?

Answer 11

• Fences
• Payment of rates