PED222 Property Law Essay: Adverse Possession Critique & Analysis

This essay critically examines the legal principle of adverse possession, challenging the notion that it is a straightforward and inexpensive process. It begins by defining adverse possession as a legal theory where an individual occupying another's land can gain ownership over time, provided certain conditions are met, such as hostile, actual, open, exclusive, and continuous possession for a specified period. The essay uses the Australian legal context, highlighting a doctrine that allows a trespasser to acquire land ownership after 15 years and 1 day of continuous possession. It argues that proving adverse possession is complex, messy, and costly, referencing cases like Abbantangelo v Whittlesea City Council to illustrate the challenges in demonstrating factual and exclusive possession, as well as the intention of animus possidendi. The essay also notes that adverse possession claims cannot be made against the Crown, council-owned land, or authoritative government bodies. Ultimately, the essay concludes that acquiring land through adverse possession is difficult due to the potential for conflicting evidence and the costs associated with documentation.

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Student’s Name
Institutional Affiliation

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Introduction
Adverse possession refers to the legal theory whereby an individual who possesses a
piece of land that is legally owned by another can turn out to be the owner. There are certain
requirements which must be met for a specific amount of time depending on the jurisdiction.
Historically, this theory was used to encourage individuals to out unused land into productive use
rather than having it stay dormant. Before this rule can apply, it is required that an occupation be
hostile, actual, open and notorious, exclusive and continuous. Of course, these must be present
for a specified time frame. Also, it will depend on whether or not the occupation was as a result
of illegal trespassing, or if it was an act of good faith and the trespasser believed that the
occupation was justified. For example, if an individual possess land as a result of an incorrect
deed, then an act of good faith is present. This paper champions the thesis that proving adverse
possession is not a relatively easy and cost effective process.
Proving Adverse Possession
In Australia, there is an old doctrine which states that where an individual who trespassed
is still in possession of the land for 15 years and 1 day, then he or she may have legally acquired
the ownership of the land (Katz 2010, p. 51). Basically, it serves to offer protection to individuals
who have used land over a long period believing it is theirs, from being thrown out by another
individual who gets to discover an error in relation to the original boundaries. A proper example
is when a fence has been wrongfully placed inside the boundaries of another property. The
involved properties may have been sold quite a number times before this mistake is noted.
Therefore, the land owner who loses as a result of this mistake cannot force the other land owner
to move the fence back to the original boundary.

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Although some may believe that the adverse possession is an easy process, previous cases
prove that this is not a relatively easy and cost effective process as it is presumed to be. The
various individuals who have been involved in a litigation dispute have already noted that
adverse possession is a rather complex process that can also be messy and costly. Basically, the
existence of this law presents various opportunities for individuals to claim better title by means
of possession. It is even being used by individuals who want to benefit from land procurement as
all they need is to try and prove that they have possessed the land over the required time frame
(Kozlowski 2017, p. 27). Basically the adverse possession claims cannot be made against
specific parties. These include; the Crown, the land owned by the council, or even the
authoritative government bodies as stipulated under Limitations of Actions Act 1958 in s. 7-7C
(Woods 2009, p. 32).
When an individual believes that there is claim in adverse possession, action is taken
under s. 60 of the Transfer of land Act 1958 (Woods 2009, p. 39). Also, it is suggested that it is
best to check with the Land Victoria website whereby a list of all the required checklist
documents and necessary evidence are provided. This process requires some financial input,
which can be quite expensive. Also, there is the notion that applicants are required to submit
boundary plans, statutory declarations for personal use, for solicitors and the disinterested
witnesses (Denyer-Green 2002, p. 160). Lastly, aerial photographs are also required to act as a
persuasive piece of evidence.
Although all these materials are readily available in the government website, it can still
be quite difficult to prove it. This is because the factual matrix presented by each party is what
will determine the progress. When matters proceed to litigation, it is usually as a result of how
both parties feel entitled to that particular piece of land. The case of Abbantangelo v Whittlesea

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City Council and the Court of Appeal (2009) provides a series of issues which must be proved.
First, even though an owner may have the ‘better title’, it can still be challenged by a possessor
who shows factual and exclusive possession (Katz 2008, p. 280). There must also be an intention
of animus possidendi which can be identified by considering the physical possession which is
clear. This means that a fence and use of land for private purpose must be present. Hence, it can
be quite difficult to prove adverse possession.
Conclusion
The adverse possession law may seem harmless and easy to pursue. However, this is not
the case as the process can be messy especially when more than one party has access to evidence
of possession. It can be difficult to acquire land when another individual offers a ‘better title’ as
proof. It may also cost a lot for the individual to obtain the necessary documentation. This is the
reason why the adverse possession process is not relatively easy and cost effective as described.

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Bibliography
Denyer-Green, B 2002, 'Williams v Jones and another', EG: Estates Gazette, no. 240, p. 160.
Katz, L 2008, 'Exclusion and Exclusivity In Property Law', University of Toronto Law Journal,
vol. 58, no. 3, pp. 275-315. Available from: 10.3138/utlj.58.3.275. [9 August 2018].
Katz, L 2010, 'The Moral Paradox Of Adverse Possession: Sovereignty And Revolution In
Property Law', McGill Law Journal, vol. 55, no. 1, pp. 47-80.
Kozlowski, JC 2017, 'Adverse Possession Claims in Parkland', Parks & Recreation, vol. 52, no.
12, pp. 24-29.
Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 (CoA Victoria)
Woods, U 2009, 'The English Law on Adverse Possession: A Tale of Two Systems', Common
Law World Review, vol. 38, no. 1, pp. 27-55. Available from: 10.1350/clwr.2009.38.1.0182. [9
August 2018].