Get off my land, a guide to defending an adverse possession claim

As appearing in the Law Institute of Victoria Journal in August 2019 an article by Phillip Leaman which explains how to defend an adverse possession claim by a neighbour.

The case of Laming v Jennings is now the leading authority on how to successfully defend a claim for adverse possession. The case also puts into question the extent that easements by lost modern grant can exist in a Torrens system. By Phillip Leaman

Snapshot:

• Without some form of enclosure or building over land, it will be almost impossible to claim adverse possession of land
• There are several technical defences which can be raised to defeat an adverse possession claim which may not be obvious.
• Changes in ownership of servient land over the relevant period may result in a claim for an easement by lost modern grant failing

Adverse possession occurs when another person’s land is intentionally used and all other parties are excluded from its use for a period exceeding 15 years.

A claim for an easement by lost modern grant is a legal fiction in that if a property has been used for at least 20 years in a way which was capable of being the subject matter of a grant of an easement, then the Court deems that the land owner must have granted an easement in the past and the Court recognises that easement by a declaration which can be registered on title.

Laming v Jennings

There are a number of well-established principles of adverse possession in the leading authority of Abbatangelo v Whittlesea City Council (Abbatangelo).1 Laming v Jennings (Laming),2 heard in the County Court of Victoria in 2017 and in the Court of Appeal in 2018, confirms and expands the principles relevant to this area of law, particularly in respect of defending a claim for adverse possession.

The case is also important for limiting the scope for easements, due to the alternative claim made by Jennings for an easement by way of lost modern grant for use of the claimed land as a “backyard”.

The findings in respect to the adverse possession claim were not appealed. The findings in relation to the easement granted were appealed to the Court of Appeal successfully and Jennings sought special leave to appeal that decision in the High Court of Australia, which application was dismissed in April 2019.

The facts

The case involved an area of approximately 1400 square metres of disputed land which was claimed by Jennings to be adversely possessed by him and his predecessors in title, the Howards. The disputed land was part of a larger parcel of land owned by Laming (about 16000 square metres), which was originally owned by Telstra3 and housed a telecommunications tower. Jennings owned land of approximately 1700 square metres abutting the disputed land. It was alleged that Jennings and the Howards used the disputed land for various uses including recreation, burning off from two separate fire pits, games, picnics, occasional social activities, planting of fruit trees, storing wood, ball games and as a general extension of their backyard.

The Jennings and Howards also alleged that they mowed the disputed land on a regular basis and the Howards had removed a vegetation barrier on the title boundary which also included the remnants of a concrete post and wire fence. Laming had only recently acquired the land and the focus of the proceedings was the period in which Telstra owned the disputed land and more particularly after 6 November 1991 when Telstra was no longer part of the Crown.

Telstra undertook by itself and through its contractors general maintenance of the land and regular visits to the telecommunications tower. The concrete fence posts on the title boundary remained in place.

The disputed land was not enclosed within the Jennings’ property by a fence and the disputed land was an open unfenced area which Telstra, other subsequent owners of the disputed land and locals could access freely. Apart from a mow line, which varied, there was no difference between the disputed land and the balance of the Laming land.

The adverse possession claim

Jennings argued that they, together with the predecessors in title the Howards, had possessed the disputed land for a period exceeding 15 years. Laming disputed the claim. At first instance, the Court found against Jennings on their adverse possession claim.

What defences were successfully argued?

Laming argued that the acts of Jennings and the Howards, when combined, did not amount to sufficient acts to establish the requisite intention to possess the disputed land. Enclosure of land is prima facie the best evidence of an intention to possess.4 As there was no enclosure, Jennings needed to rely on the acts of use to prove the necessary animus possidendi.

The Court also restated and confirmed the position at law for a number of defences pursued by Laming to the adverse possession claim including:

• The Howards and Jennings had made a number of formal and informal offers to purchase the Laming land (or part of it). Making an offer to purchase the disputed land (or a larger parcel including the disputed land) will, if in writing, constitute an acknowledgement of title.5 The Court found that if an offer to purchase is made orally, it will adversely impact on the claimant’s intention to possess. Any time prior to a formal acknowledgement of title will be discounted for the purpose of an adverse possession claim. An offer may not be fatal to a claim if it is made in the course of negotiating a resolution to the adverse possession claim itself.
• Telstra had undertaken a number of surveys of the land (including the disputed land) for the purpose of subdivision and deciding what land to keep and what land to sell. The Court found that where survey work is undertaken for purposes which include clarifying the title dimensions of certain properties with a view to sale, then there is a sufficient assertion of the owner’s rights to amount to possession. A survey is a sufficient act of retaking possession from an adverse possessor and will restart the clock for any claim. However, the Court did not consider the effect of a survey on a small sliver of land which, in the writer’s view, may not be sufficient to constitute a retaking of possession.

The Court found that the Howards and Jennings were never in possession of the disputed land and did not seek to assert or maintain exclusive possession and control of the disputed land.

Can you ever claim adverse possession without enclosure?

While the Court did not find that you could not make a claim for adverse possession without enclosure, practically it will always be difficult to make a claim if there is no attempt to exclude people off the land (usually done by enclosure or signage) where there is no physical boundary or clearly marked delineation between the two lands.

A recent decision of the English Court of Appeal in Thorpe v Frank6 ruled that paving land without fencing was sufficient in those circumstances to successfully claim adverse possession. This was despite the fact that the registered proprietor was able to walk across the paved area as a casual trespasser.

What if there is possession but not 15 years?

The registered proprietor should consider:

• physical entry on the land (noting that you need to do something more than just mere re-entry or serving a mere letter objecting to possession)
• fencing and changing locks on gates (subject to compliance with the Fences Act 1968 (Vic))
• issuing legal proceedings to seek a declaration.

It is important that any registered proprietor is sure that 15 years possession has not accrued otherwise they will be committing an act of trespass and subject to a claim for damages.

When making a claim it is also important to consider whether the claim is prevented by statute. For example, claims cannot be made against land registered in the name of the government/Crown, VicTrack, some government organisations and councils. In Laming, the relevant period was restricted to the period after the time Telstra’s Crown statutory immunity was removed.

Just because someone alleges a claim for adverse possession does not mean that it will be a fait accompli. There are several technical defences to an adverse possession claim which may be available to a land owner and a careful analysis of the history of the property is needed.

Laming reinforces the case law on the area of defending adverse possession claims and confirms that an offer to purchase claimed land will in most cases be fatal to a claim.

The easement claim

As an alternative to the claim for adverse possession Jennings argued that they had acquired rights to use of the disputed land by way of lost modern grant through use of 20 years or more. At first instance, the Court found in favour of Jennings for an easement for recreation with a permitted use including burning green waste and storing domestic firewood. The judgment included findings that the disputed land was “subject to the easement in and after 1986 as a backyard”.7

At first instance, the Court found that the area the subject of the easement was used for activities such as the cutting of grass, clearing and burning of green waste, maintaining and enjoying trees, playing games and sports and engaging in general recreational activity including entertaining family and friends.8

Easements obtained through lost modern grant are most common when they are for carriageway purposes. In Laming, the easement sought was for use as a “backyard”, albeit that what was actually ordered at first instance (as determined by the Court of Appeal) was an easement for recreation with some other uses attached.

There are only three cases in the history of the Australian and UK legal systems on easements concerning “recreation” or pleasure grounds, namely Re Ellenborough Park,9 Jackson v Mulvaney10 and Riley v Penttila.11 Apart from Jackson v Mulvaney, the other cases were extensions of easements granted expressly and involved communal gardens rather, than in Laming, as a private “backyard”.

What was appealed and what did the Court find?

Laming successfully appealed on two grounds:

• That Telstra did not have knowledge of use of the land by Jennings or the Howards. The Court of Appeal found there was an insufficient factual foundation for the Court at first instance to conclude that Telstra had knowledge, either actual or constructive of the facts necessary to establish the easement found by the Court at first instance.

• The easement was too wide and uncertain to be recognised at law and the evidence of user could not give rise to such a broadly defined easement. The Court of Appeal found there was a lack of evidence to reveal a practice or understanding as to the manner in which rights of recreation could accommodate the rights of the owner of the servient tenement and as the easement found was not one of a communal use of a recreational space, the easement was of a breadth which the law does not recognise.

The death of easements by lost modern grant?

The Court of Appeal made some important comments in respect to a third appeal ground concerning s42(2)(d) of the Transfer of Land Act 1958 (Vic) (TLA) in which it was argued by Laming that the TLA does not operate to preserve easements that do not subsist at the time of registration.

The Court of Appeal did not decide this ground, noting that it was not necessary. However, the Court of Appeal did, in obiter, put in doubt whether an easement by lost modern grant is protected against the principle of indefeasibility of title if there is a change in registered proprietors of the servient land when the rights are inchoate. Section 42(2)(b) of the TLA protects “any rights subsisting under any adverse possession of land” against the principle of indefeasibility of title.

Compare this with s42(2)(d) of the TLA which provides protection against the principle of indefeasibility of title for “any easements howsoever acquired subsisting over or upon or affecting the land”. In the writer’s view, which seems to be supported by the Court of Appeal’s obiter, because the words “howsoever acquired” are used in s42(2)(d) of the TLA, if use (to support an easement by lost modern grant) has not been at least 20 years against the same servient owner then there is an argument that such rights will not have protection and a party will become registered proprietor of the land on a transfer free of an alleged user’s inchoate rights. This means that the scope to claim an easement by lost modern grant may be severely diminished in the Torrens system where servient land has multiple owners over the requisite 20 year period. Each new registered owner may effectively restart the clock. We will have to wait for more judicial consideration to see whether this is the effective death of easements by lost modern grant where there are multiple servient owners.

Phillip Leaman is principal at Tisher Liner FC Law Pty Ltd and an LIV accredited specialist in business law. Phillip acted for the successful parties in both the Abbatangelo and Laming cases and is an expert in adverse possession and easement matters. Please contact Phillip Leaman for adverse or see our main page for further information by clicking here.

1. Abbatangelo v Whittlesea City Council [2007] VSC 529 and Abbatangelo v Whittlesea City Council [2009] VSCA 18. For a detailed analysis of that case see “What’s yours is mine adverse possession in Victoria” June 2010 84(6) LIJ, p30.
2. Laming v Jennings [2017] VCC 1223, Laming v Jennings [2018] VSCA 335, Laming v Jennings [2019] HCA SLA 120.
3. Telstra Corporation Ltd, previously the Australian Telecommunications Authority.
4. Seddon v Smith (1877) 36 LT 168, 1609.
5. Limitation of Actions Act, ss24 and 25.
6. Thorpe v Frank [2019] EWCA Civ 150.
7. Para 54-55 of the Second Judgment of Laming v Jennings.
8. Note 7 above.
9. Re Ellenborough Park [1956] Ch 131.
10. Jackson v Mulvaney [2002] EWCA Civ 1078.
11. Riley v Penttila [1974] VR547.