Calculating the period of adverse possession
Earlier in this series, we identified fundamental aspects of the legal doctrine of adverse possession.
Simply put, the doctrine allows a neighbour, squatter or other trespasser to claim ownership over any part of your land if it has been occupied for a consecutive period of at least 12 years.
However, if the period of occupation does not add up to the minimum period of 12 years, then the claim for adverse possession will fail.
All of this seems straight forward enough, right?
If so, you should be able to readily answer the following 4 questions set out in this blog. But if not, further reading of our blog articles is recommended.
The 4 questions have been answered by different cases which have come before the Courts. Each of them will now be discussed.
For ease of reference, we will refer to the protagonists in the different cases as the Owner and the Occupier of the land respectively.
Question 1
If an occupier of land remains in possession of land for a period of 10 years but then dies, can their right of occupation be passed on (for example, by a will) to their successor? If so, can that successor remain in occupation for a further two year period in order to claim adverse possession?
Answer:
The original occupier’s period of adverse possession will not necessarily be discharged just because the time period did not reach the minimum of 12 years.
The occupier's right of possession can be assigned to another person during his or her lifetime, and can also be devised by Will upon the occupier's death – see Allen v Roughley (1955) 94 CLR 98.
Therefore, the later occupier (who inherited the rights of the original occupier of the land) could claim adverse possession by remaining in occupation of the land for an additional two-year period.
Question 2
If an owner's land is being leased to a tenant, can a squatter claim adverse possession of the land after 12 years of occupation?
(Or if the lease expires after 10 years of being held by the occupier, can the occupier then remain on the land for a further 2 years in order to claim adverse possession against the owner)?
Answer:
The occupier holds the land adverse to the tenant, but not the owner. Only the tenant has a right to recover possession of the leased land from the occupying squatter. So, the owner has no right to evict the occupier from the land while it is being leased to another person. Therefore, the occupier's claim of adverse possession would fail against the owner.
After the leasehold tenancy of the land has expired, the 12 year time-period for the owner to recover possession from the occupier would then start 'ticking' – see Fairweather v Saint Marylebone property Co. Ltd (1963) AC 520.
However, because the period of occupation had only been for a further two years after the expiry of the lease, the claim of adverse possession would still fail.
Question 3
What if an owner's land is occupied by a squatter for 10 years, but that squatter is dispossessed by another squatter who remains on the land for a further two years?
Answer:
The Courts have determined that the second squatter is entitled to add the period of the original squatter's occupation to their own period of occupation.
As the cumulative period of occupation by the successive squatters exceeded 12 years, the second squatter would be entitled to claim adverse possession of the land – see Salter v Clarke (1904) 4 SR ( NSW) 280.
Question 4
Would the outcome be different if the owner's land is abandoned by a squatter who has occupied it for 10 years, after which it is occupied by a different squatter for another two years?
Answer:
The original occupier abandoned the land after 10 years. So, any claim for adverse possession by that occupier would fail.
The position would not be any different for the later squatter, who commenced a fresh period of occupation over the abandoned land. The fresh period of occupation was only for a period of two years – see Mulcahy v Curramore (1974) 2 NSWLR 464.
Epilogue
The rationale of the doctrine of adverse possession is to promote the continued use and enjoyment of land, and to ensure that land does not remain idle.
Even where the 2 successive squatters referred to in question 3 both effectively dispossessed the owner from the occupied land, their 2 wrongs nevertheless resulted in a right of adverse possession.
The 2 successive periods of occupation were both adverse to the owner's use of the land, and were consecutive periods of occupation. Therefore, they could be added together to equate to a cumulative period of 12 years.
The result of the expiry of the 12 year period was to terminate the owner's right to take action to recover possession of the land.
Contact Us
If the issues discussed in this blog are relevant to you and/or you require legal assistance, you can contact Tony or Andrew at Irwin Legal on admin@aristei.com.au or by contacting 08 92218337.
About the Author
Anthony J Aristei ('Tony') was admitted to legal practice in Western Australia in 1985, and admitted as an independent barrister in 1996. With some 40 years of legal experience, he has represented clients in over a thousand cases, including numerous high-profile matters reported in a number of law reports such as the Western Australian Law Reports, State Reports and various Federal Reports.
Tony is also an accomplished legal writer, having authored the Nutshell students' text on real property law and annotated commentaries on retail shops legislation in Western Australia, along with various Law Society of Western Australia and LexisNexis seminar papers on property, equity, and trusts law. Additionally, he previously served several terms as the President of the Western Australian branch of the Anglo-Australasian Lawyers Society, which fosters professional relations between legal communities in Australia, New Zealand, and the UK.