Until 1979 in New South Wales, it was not possible to acquire title by adverse possession to Torrens title land, section 45 of the Real Property Act 1900 said that the title of a registered proprietor could not be affected by adverse possession under statutes of limitation.
A once famous series of court cases shows what could happen. In 1921 Walter Beed bought (and so became the registered proprietor) of a house in Military Road Mossman Walter allowed his niece Jessica Beed (then aged 55) and her companion Miss Arthur to live there and went to America where he died intestate in 1933. Miss Beed also died in 1941 leaving Miss Arthur in the house. Two other ladies came to live with Miss Arthur, Miss Arthur and one of the ladies died leaving the remaining lady Miss Spark living there until in 1968 she moved to Queensland and instructed her solicitor Mr. Currie to organise a tenant. Mr. Currie arranged an agent who let the house to Mr. McLeod. During the time the ladies lived in the house they renovated it, they paid rates (the rates notices being issued Walter Beed c/o and then the various ladies names.
Meanwhile the neighbouring land was owned by Hamilton Rentals Pty Ltd a company controlled by Mr. and Mrs. Chambers and leased to another of their companies (Whale Car Wash Ltd). Whale then also leased some other parcels of nearby land.
Early n 1969 Mr. Currie was contacted by a Mr. Nelson Meers, a solicitor and a partner of a firm now called Gadens. Mr. Meers later became Lord Mayor of Sydney under the Civic Reform banner. Mr. Meers said he was acting for Whale Car Wash and offered Mr. Currie $2000 for Ms Spark’s interest in the land. Mr. Meers was also a shareholder in Whale Car Wash Limited. (As an aside to comparative values in 1968 my parents sold their home in Denistone – a Sydney suburb near Eastwood for $8000.)
Mr. Currie took instructions from his client and told Mr. Meers that she was not interested.
Later in 1969 a Mr. Ingram visited Mr. McLeod the tenant of the property Ms Spark had possessed. Mr. Ingram asked Mr. McLeod about the property he rented and then tried to persuade him to move. Mr. Ingram said he wanted to live there himself as his aged mother lived nearby and he wanted to live close to her to help her. Mr. Ingram was very persuasive offering to pay Mr. McLeod’s moving expenses, half his rent for the next year and some legal fees –in fact he arranged for Mr McLeod to see a Mr Riley whom he said was a solicitor. He also prevented Mr. McLeod from speaking to Ms Spark’s agent until after Mr. McLeod had moved out. A little while later Mr. McLeod went back to the house he previously rented and was surprised to see a young family in residence. He asked one of them- Mrs. Knox what had happened and was told they knew nothing of Mr. Ingram and that they leased the house from Whale Car Wash. Mr. McLeod asked Mr. Billerwell the agent who had let him his new house for the phone no of Whale Car wash and was given 969 2790. He rang that number and was told by a Mr. Riley that the manager Mr. Emerson was out and would ring back. Mr. Emerson never did.
Meanwhile Mr. Billerwell found out that Mr. McLeod had started living at the new house before he had signed a lease. Mr. Billerwell was sure he had not given Mr. McLeod or Mr. Ingram a key before then and reported to the owner who investigated the matter. The owner found that a panel of glass in a verandah door had been cut and part of the panel removed. The panel was large enough to get a hand through and open the door. Mr White later gave evidence of a phone call with Mr. Chambers to the effect that Chambers said to him "We needed the house that McLeod occupied for the car wash and I am willing to pay the difference in rent between what you normally got for the premises and wheat the new tenant will be paying."
Ms Spark soon found out what had happened and formally served a notice to quit on Mr McLeod, because he was still legally her tenant. (She had never consented to the lease being transferred to new tenant. Transfers of leases might be the subject for another article).She then started an action to ‘eject’ the Knox family. A little while later Whale Car Wash was substituted as the defendant and the case became one between Ms Spark and Whale.
The judge found these facts
• Mr Ingram was a false name and the story he had about his aged mother was a lie both used to persaude Mr McLeod to leave the house he rented from Ms Spark
• Mr Rliey was not a solicitor but probably an employee or in some way associated with Whale Car Wash
• Mr and Mrs Knox were tenants of Whale Car Wash
• The locks had been changed to prevent Ms Sparks’ agent from re entering the house
• Whoever Mr Ingram really was , he was acting on behalf of Whale Car Wash
He then held that because “Mr Ingram” had gained possession through Mr McLeod and because “Mr Ingram” was the agent of the company , Whale Car Wash could not argue that Ms Spark was not the owner of the property.
He went on to say that “Mr Ingram” by a number of false representations, a false story and a wrongful course of action , had fraudulently induced Mr McLeod to give him possession of the property.” He continued saying that Mr Ingram was Whale’s agent and that Whale (And all those associated with it,) were a part of a conspiracy (he called it the wrongful conduct of the company) .
And now I come back to where I started this series. Our law respects ‘possession’. Ms Spark had lawful possession of the property. She could resist anyones claim other than that of the true owner (Mr Beed or those claiming through his estate) while she was living at the property. Mr McLeod had rented the property and so acknowledged Ms Spark’s possession and her rights to possess the property. “Wrongdoers” (to use the judge’s polite word to describe the company and those associated with it)were in no better position than Mr McLeod- Ms Spark’s prior possession was sufficient title against the company as a wrongdoer. ..to hold otherwise would alloe the company thought its agents wrongful conduct to take advantage of his wrongful acts”
So Ms Spark won, the company was forced out, had to pay her costs and Ms Spark regained possession of the house in Mossman. But she was still not the owner because she was not the registered proprietor. And the next round was between her and Mr Beed’s descendants and I will write about that round next time.
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