More on boundaries and possession

Last year I wrote a series of articles about possession and one about boundaries and the Torrens system. This week I want to tie them together.

You may remember that after the Whale Car Wash cases the state government changed the Real Property Act (which governs Torrens title land) to allow people to make possessory title claims. There were a surprisingly large number of valuable parcels of land where the owner by documentary title had seemingly forgotten them- as Mr. Beed and his family had done; there were even more odd bits of land- some were half acre blocks in towns that had never really developed and were used as grazing paddocks by nearby farmers, some were strips of land left between a road and a block of land after the road was rerouted, others may have been intended as roads but never dedicated as such...there were many reasons why people had neglected them.

The amendments allowed people to claim a lot in a plan, it did not –normally – allow someone to claim part of a lot. There was an exception- if a lot was cut into two parts by a road or a water course a person could claim the whole of the land even though he was only in possession of the larger part of it. That is an odd result because it defeats the possession –and remember our law particularly protects the rights of people who possess property- of whoever was ion possession of the smaller part.
But in practice that is not an issue because the Department of Lands requires a
n applicant for a possessory title to get his neighbour’s consent. And what is likely to happen is that the neighbour in possession of the smaller part will consent on the basis that the applicant transfers the smaller part.

And there is another answer to the problem where the boundary is a fence line rather than a creek or larger part .And here I return to the boundary issue in Clarencetown I wrote about last year where one neighbour claimed title up to a very old fence line saying they had possession of the land u p to the fence line even though their neighbour measuring their land from the supposed street boundary said (and they were right) that by the dimensions shown on their title plan it was they who owned the disputed land- some distance on the other side of the fence line. The court held the fence line is the boundary.

In a possessory title case one owner might not rely on possessory title at all but on where his fence line is. He may well say ‘both we and our neighbours have always accepted the fence as a boundary, and so it is the boundary.” Strictly he is relying on the fact that he is possession of the land but it’s a different concept. He is not claiming his neighbour abandoned the part of the land the claimant claims, rather he says that in effect by each regarding the fence line as the boundary they have agreed that it has became the boundary despite what the position as measured by dimensions shown on the title plans..

These answers do not help if someone only wanted to claim part of a lot- say (and I have seen this happen) a road cuts a large parcel of land in two- there is one part of say 95 acres and the other part of 4 acres from an original piece of land of 100 acres- the remaining acre being taken by the road.. The farmer who has fenced in the 4 acres cannot get a possessory title to it. The first answer doesn’t help because it’s only the farmer with the 4 acres who wants to claim title. The second doesn’t help because the road intervenes –the two neighbours no longer share a boundary.

This is still an issue that needs sorting.

(Local papers article week ending 27.5.2011)