See also Adverse Possession and Easement By Possession, Claiming of 

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Customer Query:

This office was approached to clarify the situation concerning an adjoining owner claiming ownership over portion of a title that had been created under Council approval in the last 15 years. The situation regarding such claims has recently changed and there are many in the land related professions who are still giving advice under the old legislation. The case in question reflected the following facts:

--We understand that you are concerned about the use of the roughly formed strip of land as fenced along the inside of the north east boundary of your property shown as lot X on Sealed Plan XXXXX.

You advised that your enquiries with Council indicated that the strip of land is not maintained by Council as a local highway for continuous public use.

From examination of the parent survey plan and survey notes, it appears that the land in question falls within lot X on Sealed Plan XXXXX. This lot constitutes your title that reflects your rates demand from Council. We have not undertaken a site visit although the survey plan originates from this office.

Our Thoughts:

SIMPLY: We advised :A person wishing to acquire an easement by possession must make application to the Recorder of Titles under Part IXB of the Land Titles Act 1980..

As the land owner you may grant a right of carriageway easement and have it registered on your title, or you may refuse to do so.

Should you grant such a right of carriageway you will lose effective control over the strip of land.

Whilst the repealed Prescription Act 1934 may or may not have presumed that the adjoining owner had acquired an easement as of right, the new provisions in Part IXB all but require your acquiescence before an easement may be vested.

An applicant applying for an easement must notify the servient owner (in this case you). If you lodged a notice of objection with the Recorder of Titles, the Recorder will not deal with the application unless she is satisfied that the applicant would suffer serious hardship if the application is not granted.

The legislation was enacted in April 2001 and abolished the rules of common law previously used in the Supreme Court for the acquisition of easements by prescription and lost modern grant.

We suggest that you discuss this report with your solicitor, to obtain his confirmation of our understanding of the legislation. There may be other provisions in the new legislation that he considers relevant to your situation.

Perhaps you should also confirm with him whether or not you should- grant a right of carriageway easement, or advise the adjoining owner that you will object to any application to acquire an easement by possession, or erect a gate, padlock and close off the strip of land.

A paper reflecting the new provisions:

 

THE EFFECT OF LAW REFORM ON PRESCRIPTIVE EASEMENTS & ADVERSE POSSESSION:  Presented by Ian Cornelius MIEMS (Aust) at the 2001 Tasmanian State Survey Congress

BACKGROUND:

The Land Titles Amendment (Law Reform) Act 2001 was commenced on 12 April and the provisions from that Act have now been incorporated into the Principal Act, the Land Titles Act 1980.

The provisions of the new Act cover a range of law reform, including Part IXB that deals with possessory title to land.

Since my offer was made to the congress convenors to present this paper, the Recorder of Titles has issued two circulars on the subject and the ISA, in conjunction with the Law Society, has held a seminar.

This paper discusses the consequence of law reform on prescriptive easements and adverse possession and it also offers suggestions as to how to deal with boundary misdescription, as this was one of the issues concerning both speakers and members at the mid June seminar.

1.    RIGHT TO ACQUIRE EASEMENTS BY POSSESSION

The repealed legislation:

Before the 12 April a person wishing to acquire an easement by possession used the principles of possessory rights and easements that were generally considered to be recognition of existing entitlements in rules dating back to earliest law.

The Supreme Court would determine an application taking into account (amongst other things) that prescription was founded on the premise that long continued exercise of an apparent right created an actual right.

The Prescription Act has now been repealed, the rules of common law for the acquisition of easements by prescription have now been superseded and the doctrine of modern lost grant has now been abolished.

The new legislation:

Under the new legislation a person who has used or enjoyed rights over a 15 year period (or 30 years in the case where an owner is under a disability) and wishing to acquire an easement by possession may apply to the Recorder of Titles under Part IXB of the Land Titles Act 1980.

The new legislation also extends to applications over unregistered land.

Power of owner to lodge a caveat:

An owner of land may lodge a caveat with the Recorder giving notice that a person exercising rights that may amount to an easement is doing so with the permission of the owner. A caveat stops time from both accruing and running in favour of a person exercising rights that may amount to an easement. The caveat is recorded on the owner’s own folio in the Register.

The Recorder must give notice of the caveat to the person named in the caveat as exercising rights that may amount to an easement.

This is a new provision and whilst it stops the limitation period from further being complied with, it does not seem to stop the dominant land user from using the land, because he or she is presumed to be doing so “with the permission of the owner”.

No easement in gross:

An easement cannot be acquired in a case where there is no land capable of benefitting from the easement.

Requirements for an application:

An application must show that-

• The easement has been enjoyed as of right
• No written or oral agreements as to use have been made
• There has been no unity of seisin between the dominant and servient tenements
• The owner knew, or ought to have known, of the enjoyment of the easement
• The right of easement is of a continuous nature
• The applicant owns the dominant tenement.

At least one other person must produce evidence in support of the easement being claimed.

An application is to be supported by a plan of survey, unless the Recorder directs otherwise.

Applicant to notify owner of servient tenement
Before lodging an application with the Recorder, a person must give written notice of the claim to the owner of the servient land.

If the owner does not object the Recorder must consider the application.

If the owner lodges an objection then the Recorder may not consider the application unless she is satisfied that the applicant would suffer “serious hardship” if the application is not granted.

Caveat forbidding granting of an application
Any person claiming an estate or interest in the land in an application may lodge a caveat with the Recorder forbidding the granting of the application

Comment:

Claims for acquiring an easement by possession are few and far between but seem to be able to generate adverse media attention when they are dealt with. The new provisions are probably the direct result of one notable recent case on the north west coast.

The new provisions have removed the equity from the process and are weighted in favour of the servient landowner and against the dominant land user. The repealed law presumed an applicant had acquired an easement as of right, whereas the new provisions all but require a servient owner’s acquiescence before an easement may be vested.

2.    TITLE BY ADVERSE POSSESSION

Background
A person who has been in possession of land owned by another person may acquire title to that land by applying to the Recorder in accordance with Part IXB of the Land Titles Act 1980.

In broad terms, the Limitation Act 1974 provides that an owner who is dispossessed from his or her land cannot recover that land after the expiration of 12 years, or 30 years if the owner is under a disability.

Restriction on title by possession For the purposes of an application to acquire title to land by possession, any period during which the owner has paid the Council rates is to be disregarded. This provision is probably the direct result of a recent southern case that also generated adverse media attention

This provision does not apply if the Council certifies in writing that it is unclear who has paid, or who is paying, the relevant Council rates.

This provision therefore becomes a dominant criterion in deciding whether an applicant can acquire title to occupied land by adverse possession as it is more than likely that an applicant will only be able to pay rates in a “whole of land” assessment situation.

Requirements for title by possession In determining an application for title based on possession, the Recorder must consider all the circumstances of the claim and the conduct of the parties Whether the applicant has enjoyed possession as of right
Whether the enjoyment was by force or secret, or whether any written or oral agreements had been made
The nature and period of possession
The improvements on the land including when and by whom they were made
Whether the land has been enclosed
Whether the applicant has acknowledged ownership, paid rent or made other payment in respect to the land.

At least one other person must produce evidence in support of the application.

An application is to be supported by a plan of survey, unless the Recorder directs otherwise.

Before making an application the applicant must-
Give notice in a locally published newspaper
Give notice to any person with an interest in the Register
Give notice to any person with an unregistered interest lodged with the Recorder
Post a notice on the land.

Avoidance of sub-minimum lots

If the Recorder is unsure whether the granting of an application would result in the continuation or creation of a sub-minimum lot, the Recorder may require an applicant to produce a certificate from the relevant Council. The certificate must confirm that the block is not sub-minimum, or if it is, that the Council consents to the application.

This provision differs from, and will be considerably harder to comply with, than section 10(6)(b)(ii) of the Limitation Act 1974.

Caveat forbidding granting of an application
Any person claiming an estate or interest in the land in an application may lodge a caveat with the Recorder forbidding the granting of the application.

Comment

The law for obtaining land by adverse possession remains much the same, however there are new provisions that will dramatically reduce the number of part of land claims.

Both the payment of rates and sub-minimum block provisions of the new legislation will negate most occupied part of land claims from being dealt with as adverse possession. It will also be the relevant Council, rather than the Recorder, which determines compliance or otherwise with these provisions.

The provisions are such that the new legislation, either purposely or inadvertently, sets out to confine adverse possession claims to whole of land, minimum sized blocks, where the applicant has paid the rates for the entire limitation period.

3. DEALING WITH BOUNDARY MISDESCRIPTION

Effect of the new legislation It is likely that only 10% - 20% of adverse possession claims are over the whole of land in a folio, which means that the other 80% - 90% of part of land claims will probably now slip through the net.

The three options now remaining to resolve these occupied “slips and slivers” appear to be-

Section 142 boundary rectification
Local government subdivision
Moving the occupation to comply with the boundaries in the plan of title to the land.

Land Titles Office policy to this time The Recorder of Title’s practice book and plan guidelines booklet both indicate how varying boundary circumstances have been approached by that office to this time when dealing with boundary misdescription.

The claiming of part of an estate by adverse possession uses completely different law to the rectification of title boundaries to conform with bone fide occupation, however both differing procedures achieve much the same result. Adverse possession is about dispossessing another person of their estate, whilst boundary rectification is about amending a description of land in the Register by re-aligning the established and accepted boundaries regarded as being in an owner’s own title. Both procedures are a matter of law where a court is the final arbiter.

When the Recorder presented the government’s case to Legislative Council members prior to the law reform Bill being debated in the upper house, established office policy appeared to be overturned, when the Recorder stated emphatically that any part of land claim that previously could have been dealt with as “adverse possession” under the old legislation can be dealt with as “boundary rectification” under the new legislation.

4.    THE EFFECT ON BOUNDARY RECTIFICATION (SECTION 142 - LTA)

Rectification of boundaries Section 142 of the Land Titles Act 1980 provides-

(1) The Recorder may act as provided in sub-section (2) where it appears to him that-

(a) the boundaries, area, or position of the land described in a folio of the Register differ from the boundaries, area, or position of the land actually and bona fide occupied by the registered proprietor as being included in that folio;

(b) the description of land in that folio is based on erroneous or imperfect information;

(c)…. (d)….

The Recorder has indicated to legislative councillors that the present boundary rectification provisions are adequate for the purpose of re-aligning all boundary misdescription.

This stance also agrees with The Law Reform Commissioner’s Report No 73 of 1995. The Commissioner reported extensively on the relationship between adverse possession and boundary rectification. In relation to the application of section 142 at paragraph 4.2.2 the Commissioner reported-

The Land Titles Office advises that, as a matter of practice, section 142 of the Land Titles Act 1980 is utilised to rectify boundaries only where there is a problem based on the survey of the land.

The approach currently adopted by the Land Titles Office is narrower than the actual wording of the legislation. Indeed, in relation to clause 142 (enacted as section 142 of the Land Titles Act 1980), the Clause Notes for the Land Titles Bill 1980 stated quite clearly that-

“The necessity to correct the Register in its description of boundaries may arise from:
(a) Inaccurate surveys made in earlier days of settlement of the state;
(b) Incorrect surveys made in more recent times, which are disclosed by subsequent surveys
(c) Failure of owners to erect their fences in the proper position. They are then often prepared to treat the fence as being the correct boundary, rather than go to the cost of shifting the fence. This clause makes ample provision for the Recorder to rectify errors”.

In view of the above, it would appear that any misdescribed boundaries that are occupied in good faith (bone fide occupation) may be dealt with as boundary rectification under section 142(1)(a); survey marks notwithstanding.

This is not new ground, as I recall speaking on the subject at both the 1996 & 1997 state survey congresses.

It is also interesting to note that in 1998 when the Recorder was drafting a revision and law reform bill for the then Liberal government, he tried to take account of the Law Reform Commissioner’s Report and had members of the Surveyors Board, ISA and ACS agree to amend section 142 by (amongst other things) inserting an additional clause-
“142(1)(c) established occupation for more than 15 years has been treated as the actual boundaries of the land in a folio which is different from the survey markings and other data which are recorded as representing the boundaries of the land in the folio, plan or forest right”.
The 1998 draft bill lapsed with the change of government.

There are notice, inquiry and appeal provisions in section 142, therefore an application; surveyor’s notes and report should set out in detail the full circumstances of the misdescription and rectification being sought for the Recorder’s consideration and final order.

5.    THE EFFECT ON SKETCH BOUNDARY ALTERATION (SECTION 32 - LTA)

A sketch plan of title has boundaries that are either based on a verbal metes and bounds description, or boundaries that do not have adequate survey derivation. There are probably in excess of 50,000 sketch plans supporting folios in the Register.

The law reform will also negate dealing with boundary re-alignment in a sketch plan by adverse possession.

Section 32 of the Land Titles Act 1980 gives the Recorder wide powers to alter a verbal description to comply with boundary evidence. These powers are different to section 142 boundary rectification, as neither the Council, nor adjoining landowners need be party to the alteration.

Generally speaking a plan of survey needs to be lodged with the Recorder. This may be a sealed final plan, a strata site survey plan, or an unsealed plan lodged specifically to support an application under section 32.

The Recorder may, on the odd occasion, deal with a section 32 boundary alteration using the provisions in section 142, if it appears to her that other parties may be adversely affected. It would therefore be prudent to ensure that an application, surveyor’s notes and report set out the full circumstances of the established boundary evidence.

References:
Land Titles Act 1980
Law Reform Commissioner of Tasmania Report No 73 of 1995
Land Titles Amendment (Law Reform) Bill 2000 Clause Notes
Land Titles Amendment (Law Reform) Act 2001
Recorder of Titles Office Circulars No 4 and No 5 of 2001