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Possession And Adverse Possession Notes

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This is an extract of our Possession And Adverse Possession document, which we sell as part of our Property A Notes collection written by the top tier of Monash University students.

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Possession and adverse possession


CL developed to protect possessory rights rather than ownership (due to doctrine of tenure) o

Protects seisin (possession of land)


Relativity of title: your title is only as good as the title of others is not


Possesory title: a possessor of land gainsa right in land enforceable against the world at large except someone with a superior right to possession (documentary title holder, earlier possessor)

Principles of possessory title





A person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with his/her possession, unless that person can demonstrate a superior title - ie doc title or earlier possessory title: Toohey J in Mabo
? Crown only acquires radical title to all land on annexation: Mabo The defendant cannot defend the action by pleading jus tertii (ie, that a third party has a better right to possession than the plaintiff). The court decides the action between the parties to the dispute, not with reference to others. So we can have more than one right subsisting in property at same time, for example, in land, we can have:
? Rights of documentary title holder
? Rights of possessor of property
? Rights of subsequent possessor of property At least until the limitation period runs, the documentary title holder will have best right but as between the others, the party with the prior right will win:
? Unless there has been abandonment of that right; or
? Unless subsequent possessor has possessed property for limitation period

Justifications for adverse possession
[2.83] The principle of limitation of actions and their rationale was stated in Marquis Colmondeley v Lord Clinton by Sir Thomas Plumer MR as being to avoid interminable legislation and uncertainty, 'exposing parties to be harassed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost'. The hardship will be less on a person who has never possessed the land and slept upon his right, than on one who has long been allowed to consider it his own. Possible justifications for Adverse Possession

1. Holders of rights should not sleep on their rights

2. Problems of proof become more difficult the longer the period of time after the dispute arises

3. Allows passing of time to cure title defects and extinguishes stale claims, thereby reducing risks for purchasers

4. Encourages more efficient use of land

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