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The Joys of Adverse Possession

The Joys of Adverse Possession

By Julie Barkla
January 17, 2018

It’s hard to argue that court judgments on property law issues are, generally speaking, an entertaining read.  About the best we can hope for is the occasional good adverse possession case.  These are cases involving a claim by one person to legal ownership of land which they have been in possession of for in excess of 15 years, but which land is titled to someone else.

Most adverse possession applications involve the amassing of a large pile of paperwork, arranging one’s ducks in a neat row, then submitting the requisite paperwork to the Registrar of Titles.  This is not an easy task, and it appears that plenty of solicitors are getting them wrong.  Land Use Victoria Legal recently undertook a review of the adverse possession applications submitted between May and September 2017, and found that 78 of the 93 adverse possession applications submitted were inadequate.  An inadequate application results in requisitions, which result in delays, and the possible forfeiture of the $595.50 application fee.

An actual court case on an adverse possession issue is a much rarer beast; an annual event at best.  So the decision of Justice Garde delivered on 19 December 2017 in Spiteri v Fibreglass Industrial Products Pty Ltd [2017] VSC 768 was somewhat eagerly anticipated (by those of us in need of a hobby).

And it didn’t disappoint.  The court was satisfied that Mr Spiteri took steps to purchase land at Mount Wallace in 1988.  He paid $72,000 to his solicitor, Mr Philip Peters, for this purpose, but the Transfer of Land signed by him listed the purchaser as Fibreglass Industrial Products Pty Ltd, a company unknown to him.  He deposed that he purchased other property using Mr Peters as his solicitor, which property was also registered in fictitious names without his authority.  Boy, was putting Mr Peters’ name into Google an eye opener!

For a period of 29 years from 1988, Mr Spiteri treated the Mount Wallace property as his own.  Ultimately, his fencing, weed control, tree clearing and rate paying activities appeared to give Garde J little trouble in finding that Mr Spiteri had established himself as the adverse possessor of land which was registered in the name of Fibreglass Industrial Products Pty Ltd.  The costs that Mr Spiteri would have incurred in having the Mount Wallace property transferred into his name don’t really bear thinking about.

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