Friday, May 17, 2019
Property Law- Adverse Possession Essay
foundingTo understand the comments made by Young J in Shaw v Gar alonet (1996) 7 BPR 14 at 816, it is necrotizing enterocolitisessary to discuss the doctrine of perverse obstinacy, its requirements and the history of how this justice has been interpreted.Philosophy of contrary pigheadednessThe basic underlying philosophy for the doctrine of uncomely self-will is that historically tear use has been favoured over disuse. The doctrine protects ownership by barring stale claims of non-occupiers and errors in the title records. The intention is not to come back the diligent trespasser for his wrong nor to penalise the negligent and dormant owner for sleeping upon his indemnifys .At familiar truth, the obstinance of defeat raises a prima facie presumption that the owner is the owner, and juvenile ends concentrate on stubbornness as the basis of proprietary interest. What this amounts to is that a person whitethorn acquire property without the consent of the veritable t itleholder if he or she possesses it long enough and meets the legal requirements.Situations may arise where a person who is not the rightful owner of land occupies the land without the permission of the rightful owner. This kind of occupation of land may be deliberate, for example by a squatter who is intentionally trespassing on the land, or it may be inadvertent, for example by a neighbouring landowner who unwittingly occupies the property.The person improperly dispossessed of the land has a right to bring proceedings against the occupier to get the land. However, in certain circumstances, limitation virtue operates after a period of snip to deny the rightful owner the opportunity to bring such an turn of eventsion. When this happens, the occupier is able to continue in occupation undisturbed except by everyone who can prove a better legal right to will power of the land.To seek a title by adverse possession, both the satisf exertion of the common law requirements in rel ation to adverse possession and expiration of the pertinent limitation period mustiness be established.Requirements of an adverse possessorThe Real Property Act 1900 s 45D (1)(b) provides that a person in possession of land may apply at any time to the Registrar General to be recorded as the registered proprietor of the land ifthe title of the registered proprietor of an terra firma or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in fierceness at that time and any earlier time applied, while in ability, in respect of that land.In NSW the current formula on limitation of actions is governed by the Limitation Act 1969. S.27(2) of the Act states that the limitation period for an action to recover land is 12 years.S 45D(4) of the Act prevents the lodgement of a possessory application unless the whole of the period of adverse possession (in this case, twelve years) is expired. S.28 o f the Act provides that the cause of any action accrues on the date of dispossession or discontinuance.To dispossess a rightful owner of land, actual possession of land without notice must exist. echt possession consists of the following two elements*factual possession the appropriate degree of exclusive physical run across of the land in question and*animus possidendi an intention to possess that land to the exclusion of all others including the sure owner.One without the other will not be sufficient. To amount to adverse possessionthe acts of possession must be inconsistent with the documentary owners intended use.In Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270, 13,283, Bryson, J utter possession must be actual, open, visible, notorious, continuous and hostile to the title of the true owner to exist.In Mulcahy v Curramore 1974 2 NSWLR 464, however, Bowen, CJ stated that to amount to possession the inclusion of the requirements peaceful, not by force must exist. In analysing this, Young J in Shaw v Garbutt posed the question Is it a requirement that adverse possession be peaceful, not by force.Adverse possession inclusion of peaceful and not by force requirementsYoung J carefully considered the above judgment of Bowen CJ in Mulcahy v Curramore in demoralise of the particular circumstances of Shaw v Garbutt and closely researched the definition of peaceable at common law. He did this in two ways firstly he considered other judges definition of peaceable (including internationally) and secondly, he considered how precedence within Australia dealt with the interpretation of an aggressive act to protect ones property whilst in adverse possession.Young, J detailed the literal translation of words used by Bowen, CJ to be without force, without stealth, and as of right .The Statute of Forcible Entry 1381 provides that entry into any lands except where entry is given by law must be peaceable and easy in manner. Contrary to this, is punishable by imprisonment. In Australia, the modern equivalent replacements provide that it is lawful for a person in peaceable possession of land with a claim of right to use such force as he or she reasonably believes to be necessary to defend his or her possession against any person whether entitled by law to possession of the property or not, provided bodily harm is no caused.Despite this saturnineence of forcible entry, it was found in Hemmings v Stoke Poges Golf Club Ltd 1920 1 KB 720 that a person retaining possession of land has no civil action for damages against the rightful owner who forcibly enters the premises unless more force is used than is reasonably necessary. The bench further observed that it will still remain the law that a person who replies to a claim for trespass and assault that he ejected a trespasser on his property with no more force than was necessary may be successfully met by the resolution that he used more force than was necessary if the jury can be induced t o look it.In Shaw v Garbutt many authorities are cited with varying interpretations of peaceable possession. Generally peaceable possession is seen as possession that is continuous and is not interrupted. That is it is equated not with the use of force or threats to defend possession of the land or disturbed by the commencement of a suit for possession.Clearly where violent and abominable force is used in defending land criminal action can be pursued.Whether the possessor has been peaceable or not is a pure question of fact.Forcible or threatening lend in warning people off property can be characterised as an act acquittance to establish possession of the land.In Beever v Spaceline Engineering Pty Limited, the person in possession warned other persons off land by threatening with a shotgun. This was held to be very unsatisfactory behaviour however it was an act of possession, in that it asserted a right to control the presence of the other person .Young J in Shaw v Garbut t also stated that if the warning off of the property was found to not be peaceful at common law, the outcome of the case could have been different.In Bartlett v Ryan 2000 NSWSC 807 (16 August 2000) the specific facts ofthe circumstances were considered and in this case the acts of force were determined such that the plaintiff was divest of the benefit of their adverse possession because it could not be said to have been nec vi nec clam nec precario, and particularly that it could not be said that it was peaceably and not by force that they had obtained and maintained possession . As unlawful force was found an injunction was granted.ConclusionI concede to the philosophy of the doctrine of adverse possession, which is fundamentally to protect property rights. The intention is not to encourage the wrongful taking of possession of land. To do so would only promote violent and unlawful acts, which would naturally decease between the parties disputing ownership of land.A persons right to a cquire real property by adverse possession begins with the wrongful occupation of another persons property. In the event that an action is made to recover the possession of land by the rightful owner gives a circumstance where each(prenominal) party can exercise the rights to possession of that land.Whilst possession must be considered in every case with reference to the peculiar circumstances it is a requirement that all acts of possession be peaceable and without force, where peaceable infers uninterrupted and without force infers without violence. Protests and argument may not prevent the finding of adverse possession but obstruction and the use of unlawful physical force would.