This article was prepared for Irwin Legal by Mr Anthony Aristei.
An ounce of prevention is worth a pound of cure!!
What is the best way of preventing or avoiding an adverse possession claim from reducing the size of the land which you thought you had bought?
The answer is to take steps before an offer and acceptance for the property is signed off. After that, it becomes much more difficult to terminate the contract if you later discover the property is subject to an adverse possession claim.
The scope and effect of an ‘adverse possession claim’ was canvassed in part 1 of this series. In short, if a neighbour has occupied a portion of your property for over 12 years, they may claim to be legally entitled to that portion of the property. The occupied part of your property can take the simple form of an encroaching shed or a fence which has been built over your boundary line.
The defence of an adverse possession claim is highly technical, expensive and long-winded. Whether the claim is pursued through Landgate, or through the Courts, the net effect is deflating (to say the least). The brand-new dream property which you once purchased suddenly becomes a legal nightmare. And that nightmare can be a recurring one!
Our best advice is that you find out first whether there is a potential claim against the property you intend to purchase. If there is, you can make an informed decision about whether or not you still want to proceed with the purchase.
Any of the following steps will provide you with greater knowledge about the boundaries of the property which you hope to buy:
Step 1
Check out the Landgate website for the suite of property related searches available. You need to identify the searches that contain a sketch or plan of the property you want to buy. For example, it will cost you about $31.60 or so to get a strata plan search which has either a birds-eye photo or a survey line which marks the boundaries around the property.
There are also other searches which can be obtained (including aerial photography). Your focus should be upon the boundaries of the property shared by neighbours. Any fence, shed, driveway or other possible encroachment on the boundary line of your dream property is a ‘warning sign’.
Even if you have to get some assistance from a friendly real estate agent, settlement agent or a solicitor, your enquiry will be well worth the effort.
Step 2
Carry out a Google Earth search of the property, so you can clarify whether there are any obvious fixtures or improvements that are straddling the boundaries of your dream property. Common examples include a garage, a shed, a driveway, or an old fence. These are the ‘usual suspects’ that may give rise to a claim of adverse possession against your property by the new neighbour.
If you find there are any fixtures or improvements which straddle the property you want to buy, then your suspicion should be aroused. One of those structures may later be found (to your shock and surprise) to be encroaching over the boundary-line of your property. And if that fixture or improvement has been in place for over 12 years, then you have a serious legal problem!
Comparing the Landgate search of the property against the Google Earth search can provide further clarity about the location of the property boundary and any suspicious fixture or improvement.
Step 3
The next step needs the help of the solicitor or settlement agent who you have appointed to complete the purchase of the property. If you don’t already have one, now is a good time to get one. If you have noted structures that possibly encroach on the property you want to purchase, their help will be invaluable.
In past years, it was common for the buyer’s representative (whether a solicitor or agent) to send a list of questions to the seller’s agent, known as ‘requisitions on title’. The list set out a range of questions to check for any vital information about the condition of the property, which might not otherwise be apparent. If the seller failed or refused to answer the requisitions, the buyer could withdraw from the sale.
In relation to adverse possession claims, a series of requisitions were sent to the seller’s agent to ensure there were no encroaching fixtures or improvements that limited the full occupation of the bounded property.
As requisitions on title require answers from the seller’s agent prior to the completion of a sale, they are tailor-made to detect the existence of adverse possession claims before it is too late! The requisitions can also raise a number of other relevant and important questions about the title to the property you are buying. The minimum sale price for a property in Western Australia nowadays is in the order of at least $1 million. So, the fee for a requisition procedure is a good investment!
BUT if you do have your heart set on the property, then the next step is to ensure that Special conditions are placed into the contract of sale before you effectively buy the property. This point will be discussed in a future blog in this series.
For help in relation to the matters raised in this blog, you can contact Tony or Andrew at Irwin Legal on admin@aristei.com.au or by contacting 08 92218337.