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heritage and conservation
Q and A
Architects for Peace
edited May 2010
Q and A
Anyone ever had a neighbour threaten to claim adverse possession for their eaves gutter which was hung over the client's boundary a few decades back. The timing is at the last minute prior to our on-boundary construction.
threw $2k at phillips fox. who basically said nothing we can do. its a bitch.
not worth $ 4 the rumble dude.
but adverse possession is a myth.
You didn't know about this earlier?
take it you have issued protection notices through your BS.
notices resolve the action agreed 2 b taken. which means u have to agree 2 it staying.
bcause at this point they can have your works suspended through an injunction if they go snakey.
whether they win or not is irrelevant - the work gets stopped until the day in court.
i would think a gutter falls into the realm of fences/rights of support, overhanging tree limbs, items which r maintained + can b corrected. if your clients had time 2 have the dispute - no what i mean.
edited May 2010
client assured that neighbour was onside for rectification, that is until $ mentioned - we're not talking much either.
protection notices out 2 weeks prior to kick off - tight. Builder (already contracted) needed pushing.
offer to absorb cost may swing it?
neighbour(owner) is/was a preferred subcontractor, profit on subcontract may have been more than rectification proposed...
[minor edits - mod]
offer to absorb will swing it. always about not parting with $.
the prot. notice becomes the agreement.
Thanks all (And b_n for explaining it betterer).
I've looked around and can only find reference to over-hanging gutters being possible "easements" as they don't really qualify for adverse possession (not exclusive and enclosed use of that area). Still the process would be ridiculous and time-consuming so we'll probably take heed of your sterling advice.
One forum post somewhere suggested just removing the gutter.. now that create a scene.
b_n I've removed some identifying bits from your post.
the fox said 'how important is this 'bit of the design'. i said very. he said try to 'purchase' the land. i said why should i. fox said so cant be that important..... charm offensive of starboard. apparently a new law was passed last year to squash this. might be worth a free call to the silks.
all hail the internet
A recent article in the Law Institute Journal might be apposite to this discussion.
What's yours is mine adverse possession in Victoria
Cite as: June 2010 84(6) LIJ, p.30
The council appealed and the matter was heard before Ashley JA, Redlich JA and Kyrou AJA in the Court of Appeal.4 The councils appeal was dismissed in August 2009.
The Court of Appeal, in confirming Pagone Js judgment, set out a number of principles necessary to establish adverse possession, namely:
1. In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land and the person with the prima facie right to possession.
2. An alleged possessor must show both factual possession and the requisite intention to possess (animus possidendi) with an appropriate degree of physical custody and control for the possessors own benefit. Both elements must be satisfied by a possessor, although the intention to possess may be deduced from the objective acts of physical possession.5
3. While each case turns on its own facts, the alleged possessor must show that it has dealt with the land as an occupying owner might have been expected to deal with it and that no-one else has done so.
4. It must be clear that the intention to possess is to the exclusion of all others.
5. There does not need to be a conscious intention to exclude the true owner, but rather an intention to exercise exclusive control of the land. A person need not believe that they are the true owner of the land to establish possession.
6. Possession of the land cannot be with the consent of the true owner.
7. Whether or not the paper title owner realises that dispossession has taken place is irrelevant.
8. Acts of possession with respect to only part of the land claimed may, in all the circumstances, constitute acts of possession with respect to all the land claimed.
9. A persons use of the land may amount to enjoyment of a special benefit from the land by casual acts of trespass rather than factual possession. A mere use of the land or a special benefit will not be enough to constitute factual possession nor to demonstrate the requisite intention to possess.6
The Court of Appeal found that regard must be had to all the facts and circumstances of the particular case. This should include the nature, position and characteristics of the land, the uses that are available on that land, together with the course of conduct that an owner might be expected to follow.
The Court of Appeal noted that while previous cases can provide guidance about the relevant principles to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a persons dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another.7 Further, the acts that may be sufficient evidence of taking possession for an adjoining land owner may be insufficient for a person who lives some distance from the land.
The Court of Appeal upheld Pagone Js view that a number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.8 The Court found that some of the acts of possession individually may not have constituted sufficient evidence of possession, but when they are combined with the overall factual matrix, sufficient evidence of possession can be, and in this case was, proven.
Lessons to be learned
(a) The party making the claim
Before making an adverse possession claim, make sure that you have satisfied the requisite elements for a claim and that you have the appropriate statutory declarations and evidence to support the claim before lodging at Land Victoria. Meet each individual who can provide evidence to support the claim and test the strength of their evidence. Once a claim is made, the true owner may attempt to retake control of the property. If possession is interrupted within 15 years, the claim may be defeated. Before lodging the claim, prepare for the fight.
Consider obtaining aerial photographic evidence dating back over 15 years. Victoria has archives of aerial photographs of the state. However, be aware that the reliability of these photographs varies depending on the location of the land. For example, inner city areas have photographs with greater detail as they cover smaller areas, whereas country and regional area photographs cover much larger areas and are often not as detailed. In addition, trees and other structures can create shadows over particular areas of the land. This may mean that an important feature is difficult to see, for example, a disputed fence line. However, a series of photographs can provide strong evidence of, say, the existence of a fence (to support a claim). Also be aware that the seasons can impact on what can be viewed in a photograph (because of shadows). Photogrammetrists can provide compelling evidence.
Survey reports are a reliable record of the position of structures and fence lines and are also useful in mounting a case for adverse possession. Surveyors can provide evidence of the age of a fence and whether it was constructed on the same fence line as the previous fence. Photographs of the land (and its changing landscape) and oral evidence from disinterested witnesses can be crucial to your success. In the Abbatangelo case, oral evidence was preferred to evidence from photogrammetrists, particularly as the photographs were unclear and ambiguous. Photographs with people on the land can be supportive because they help identify time periods and may evidence use or acts on the land.
Obtain a market appraisal of the land in dispute. Unless the land is of significant value, the costs of a contested proceeding may outweigh the benefit of the land.
(b) The paper title owner
If a claim is made against your clients land without prior notice, the client will receive a notice from Land Victoria advising them of the claim. If the claim has no merit or is arguable, a caveat should be filed strictly within 21 days with Land Victoria forbidding the granting of an application pursuant to s61(1) of the Transfer of Land Act 1958 (TLA) in respect to Torrens land or pursuant to s26R of the TLA in respect to General Law Land.
Proceedings must then be issued within 30 days, failing which Land Victoria may process the claim and register the title in the alleged possessors name if the requisite matters have been complied with.
If you act for the paper title owner, do not act hastily and be wary of your clients potential defence.
If, on the evidence, it seems that the 15-year period has not elapsed, your client should act quickly to regain possession of the land. However, you must be careful to ensure that 15 years has not passed, as your client may be deemed a trespasser and liable to damages from any attempt to regain possession if the adverse possession claim is subsequently upheld.
Abbatangelo is one of the leading authorities in Victoria on adverse possession law. While it provides guidance as to the likely circumstances that may combine to provide factual possession and the requisite intention to possess, each case will have different circumstances and facts. What may be considered sufficient to evidence an unequivocal act or an intention to possess in one situation may not be sufficient in another. The courts will look at the combined conduct and acts of the alleged possessor to establish whether the necessary principles can be established.
Although the court in Abbatangelo did not rely greatly on photographic evidence, this evidence should be obtained to assist or discredit potential witness evidence, particularly if possession is being alleged for a significant period of time over a 15-year period where the recollection or availability of witnesses may be diminished. It is essential to ensure that the period of possession is continuous and there has been no break in possession. Carefully review all evidence, including all acts by the possessor, even if those acts alone seem insignificant. As in Abbatangelo, an act of placing a bath tub as a water trough may be one of the keys to successfully obtaining an order for adverse possession!
Thanks Neville. If I find anyone grazing or bathing in my disused carpark, I will take swift action!
Abbatangelo will probably be doing nicely now that that entire area has been swallowed up by the Urban Growth Boundary.
The issue I mentioned at the top of the thread vanished after we dreamt up an inelegant dogleg solution to avoid the encroaching gutter.
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