Property Law- Adverse Possession.

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PROPERTY LAW - Adverse Possession


To understand the comments made by Young J in Shaw v Garbutt (1996) 7 BPR 14 at 816, it is necessary to discuss the doctrine of adverse possession, it's requirements and the history of how this law has been interpreted.

Philosophy of adverse possession

The basic underlying philosophy for the doctrine of adverse possession is that historically land use has been favoured over disuse. The doctrine protects ownership by barring stale claims of non-occupiers and errors in the title records. The intention is not to "reward the diligent trespasser for his wrong nor to penalise the negligent and dormant owner for sleeping upon his rights..." .

At common law, the possession of land raises a prima facie presumption that the possessor is the owner, and modern cases concentrate on possession as the basis of proprietary interest. What this amounts to is that a person may acquire property without the consent of the actual titleholder if he or she possesses it long enough and meets the legal requirements.

Situations may arise where a person who is not the rightful owner of land occupies the land without the permission of the rightful owner. This kind of occupation of land may be deliberate, for example by a squatter who is intentionally trespassing on the land, or it may be inadvertent, for example by a neighbouring landowner who unwittingly occupies the property.

The person wrongfully dispossessed of the land has a right to bring proceedings against the occupier to recover the land. However, in certain circumstances, limitation law operates after a period of time to deny the rightful owner the opportunity to bring such an action. When this happens, the occupier is able to continue in occupation undisturbed except by anyone who can prove a better legal right...