Thread: Carriageway

Originally Posted by DiscoMick

That's not a term which came up at any point in our issue - can you explain it?

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"Adverse possession" is the concept that if you occupy and use land for a time period (determined by law and precedent), even if you do not own the land by title, then you can claim possession of the land as yours.

Classic example is a farmer that has used and managed a (or part of a) paddock for many years as part of his farm, even though technically his land title boundaries may not include that portion of land. He may have rights to claim legal possession of the land if challenged.

From memory this law only is relevant to "old title" land. More recent land titles (say anything less than 30 years old) is not eligible for adverse possession rules.

BTW, I'm a Council Engineer, not a wig. This does not constitute legal advice etc etc etc.....

Originally Posted by DiscoMick

That's not a term which came up at any point in our issue - can you explain it?

Sent from my GT-P5210 using AULRO mobile app

In Victoria i think it is a period of 15 years of use or occupancy of the parcel of land.
If you ring the Vic Land Titles Office there is a section on it.
It does not apply to "carriageways" according to my legal advice and advice from the Titles Office (Vic). Carriageways are forever unless removed by the land owner they are in favour of.

Cheers, Mick.

Originally Posted by Michael2

Police are so much cheaper than lawyers, and so much more convincing too.

Well done.

Yes they are and it accelerates the process too!
I think the "Blister" for it is a considerable amount of bucks and three notches in the licene as well!


Cheers, Mick.

Originally Posted by cjc_td5

"Adverse possession" is the concept that if you occupy and use land for a time period (determined by law and precedent), even if you do not own the land by title, then you can claim possession of the land as yours.

Classic example is a farmer that has used and managed a (or part of a) paddock for many years as part of his farm, even though technically his land title boundaries may not include that portion of land. He may have rights to claim legal possession of the land if challenged.

From memory this law only is relevant to "old title" land. More recent land titles (say anything less than 30 years old) is not eligible for adverse possession rules.

BTW, I'm a Council Engineer, not a wig. This does not constitute legal advice etc etc etc.....

There's quite a bit of that in Kalgoorlie, especially in the older parts of town (where I live). Many property boundaries have been established not quite where they should be according to drawings etc.

Classic case was a mate of mine a few doors down the road. He had new neighbours move in next door - they demanded that he move his boundary fence a metre back towards his own house, as they had looked at survey drawings and discovered that the fence was technically on their property. My mate actually agreed, provided that they pay half the cost of a new fence (the old fence needed replacing anyway) and he proceeded to purchase the required fencing materials. New neighbour then refused to share the costs - so my mate told them to get stuffed and it all ended up in court. Aerial photographs were produced as evidence which showed that the fenceline had been in the same place since the 1930's - my mate won the case.

We then put up the new fence with the gear that he had bought - in exactly the same position as the old fence - much to the "disappointment" of the new neighbour.

Even one side fence on my property has a "dog leg" in it, and my yard steps into the next door property by about a metre for the back two thirds of the length of the block. Those same aerial photos show that my fenceline has also been in the same place since the late 1930's.

Originally Posted by cjc_td5

"Adverse possession" is the concept that if you occupy and use land for a time period (determined by law and precedent), even if you do not own the land by title, then you can claim possession of the land as yours.

Classic example is a farmer that has used and managed a (or part of a) paddock for many years as part of his farm, even though technically his land title boundaries may not include that portion of land. He may have rights to claim legal possession of the land if challenged.

From memory this law only is relevant to "old title" land. More recent land titles (say anything less than 30 years old) is not eligible for adverse possession rules.

BTW, I'm a Council Engineer, not a wig. This does not constitute legal advice etc etc etc.....

That was one of the reasons we paid for a survey and converted our block in town from old title when we bought it. There is a transitional period where there is an opportunity for historical access users to apply for easements to continue access and after it has converted to Torrens title that is no longer possible.

Regards,
Tote

In some states (Victoria and obviously WA) you can claim adverse possession over part of a title. In other states (NSW not 'old title' and Queensland) you can only claim adverse possession over the whole of the title. This possession must also be what is termed 'open and hostile'. In other words the registered owner of the title must be aware that another party is in possession of his title. Cases of this occurring are rare.
Having worked with both, I think that allowing adverse possession over part of a title is unfair. Consider the situation of the person in Kalgoorlie in the above post. They have purchased the block of land shown on the title diagram and expect to have paid for and to take ownership of the full area as shown on the title. To then lose a portion of this land because the fence was put in the wrong place originally I feel is unfair (not withstanding their actions in regards to resolving this particular case).
Cheers, Martin

Originally Posted by marting

In some states (Victoria and obviously WA) you can claim adverse possession over part of a title. In other states (NSW not 'old title' and Queensland) you can only claim adverse possession over the whole of the title. This possession must also be what is termed 'open and hostile'. In other words the registered owner of the title must be aware that another party is in possession of his title. Cases of this occurring are rare.
Having worked with both, I think that allowing adverse possession over part of a title is unfair. Consider the situation of the person in Kalgoorlie in the above post. They have purchased the block of land shown on the title diagram and expect to have paid for and to take ownership of the full area as shown on the title. To then lose a portion of this land because the fence was put in the wrong place originally I feel is unfair (not withstanding their actions in regards to resolving this particular case).
Cheers, Martin

The majority of my experience on this issue is in NSW, I have not had to explore the situation in WA yet. I note your comment that in NSW adverse possession can only be over a whole lot. I am buggered if I know how this would work in a rural area then, when a fenceline may be a few metres off a boundary but the lot size may be 40 acres.

Re BMKal's example, I only think this would be an issue where a purchaser buys the land "sight unseen". The vast majority of purchasers would inspect the house and expect that they would be purchasing what they could see (ie between the fences), and the title diagram would not have much relevance unless there were survey pegs present. You may be theoretically getting less land area than you thought you may be getting as per the title diagram, but you must have been prepared to accept that you were buying a house and fenced backyard etc of existing, actual dimensions etc. Unless of course you spotted the descrepency during the inspection process and knowingly bought up with the intention of having an argument with your new neighbour.

Just to throw in a slightly different situation. One of my boundaries is a creek, and the boundary runs along the centre of the creek for about half a kilometre.

Obviously, a fence along the centre of the creek is not feasible, and, in fact the fence is on my side (and has been since the 1930s). Also, the fence does not follow all the bends of the creek, cutting across some of them. (What is known around here as a "give and take" fence.)

When I was buying the place, I became aware of an ongoing dispute between the seller and the neighbour over a bore he had sunk between the fence and the creek, i.e. on the neighbour's side of the fence. After a very brief discussion between our lawyer and the neighbour's lawyer, we agreed to put a dogleg in the fence so the bore was now on our side of it. I can't remember, as it was over twenty years ago, but I think he paid for some of the materials.

John