Butler v Dickson
[2018] VCC 610
•10 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-02443
| VIKTORIA BUTLER (as executrix of the Will and Estate of the Late Graham Oliver Thompson) | Plaintiff/ Defendant by Counterclaim |
| V | |
| PETER THOMAS DICKSON and CAROLYN MAREE DICKSON | First defendant/ First plaintiff by Counterclaim |
| Second defendant/ Second plaintiff by Counterclaim |
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JUDGE: | HER HONOUR JUDGE A RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15-17, 20-24 November and 1 December 2017 | |
DATE OF JUDGMENT: | 10 May 2018 | |
CASE MAY BE CITED AS: | Butler v Dickson | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 610 | |
REASONS FOR JUDGMENT
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Subject:REAL PROPERTY – ADVERSE POSSESSION – EASEMENTS
Catchwords: ADVERSE POSSESSION – Acts amounting to exclusive possession – whether 15 years’ continuous possession – intention to possess exclusively – acts amounting to retaking of possession – whether acknowledgment of paper owner’s title.
EASEMENTS – doctrine of lost modern grant – right to use area as a driveway – whether continuous use for 20 years – actual or constructive knowledge of owner of servient tenement – acquiescence.
Legislation Cited: Limitations of Actions Act 1958 (Vic)
Transfer of Land Act 1958 (Vic)
Cases Cited: Abbatangelo v Whittlesea City Council [2007] VSC 529
Edginton v Clark [1963] 3 All ER 468
Kierford Ridge Pty Ltd v Ward [2005] VSC 215
KY Enterprises Pty Ltd v Darby [2013] VSC 484
Laming v Jennings [2017] VCC 1223
Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078
O’Neil v Hart [1905] VLR 107
Phillips v Marrickville Municipal Council [2002] NSWSC 396
Re Alison (1879) 11ChD 284
Refina Pty Ltd v Binnie [2009] NSWSC 914
Robertson v Butler [1915] VLR 31
Thomopoulos v Faulks & Anor (2006) VSC 262
Wallis’s Caton Bay Holiday Camp Pty Ltd v Shell-Mex and BP Ltd [1975] QB 94
Whittlesea City Council v Abbatangelo (2009) 259 ALR 56Zarb v Parry [2012] 1 WLR 1240
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M C McKenzie | Robinson Gill Lawyers |
| For the Defendants | Mr K E Mihaly | Megan Copas |
HER HONOUR:
Introduction
1 The land situated at 12 Jasper Road, Kalorama (“Lot 6”) is a steep bush block with dense vegetation. The views from Lot 6 are panoramic and extend over Melbourne, Port Phillip Bay and the Yarra Valley. The only building on the land is a timber garage.
2 The plaintiff, Ms Butler, inherited Lot 6 from her late father, Mr Graham Thompson who had owned the block since 1940. His family had a long historical connection with Kalorama and owned several properties in the area. Mr Thompson died on 29 October 2012. Ms Butler is the executrix of her father’s estate. She became the registered proprietor of Lot 6 on 17 July 2013 and holds the land on trust for herself and her brother in equal shares.
3 The defendants, Mr and Mrs Dickson, own adjoining Lots 3, 4 and 5. Their land is known as 6 Bayview Terrace, formerly 14-16 Jasper Road, Kalorama (“the Dicksons’ land”).[1]
[1]The address was changed by the Shire of Yarra Ranges on 24 November 1997
4 The relief sought in the proceeding affects both parties’ land. Ms Butler claims an easement under the doctrine of lost modern grant over a driveway on the Dicksons’ land.[2] The driveway continues onto Lot 6 and ends at the garage. Ms Butler also seeks an injunction restraining the Dicksons from interfering with the right of Ms Butler or her invitees to access Lot 6 over the driveway; an order for possession of the garage; mesne profits for use of the garage and damages. It is alleged the Dicksons committed a nuisance in December 2015 by placing signs on their property claiming adverse possession with the intention of deterring potential purchasers of Lot 6.
[2]The plaintiff abandoned claims made for an easement of necessity and an easement by deviation at trial: T1085
5 The Dicksons deny Ms Butler has any right to an easement over their land. They counterclaim seeking title by adverse possession to all of Lot 6, alternatively, the garage and driveway. Alternatively, they claim easements in respect of the driveway and garage. They admit they placed signs on their property as alleged but deny having committed a nuisance.
6 Attached to this Judgment as:
(a) Annexure 1 is a copy of a plan which sets out the various lots, the subject of this dispute, including Lot 6, and shows a rear of way extending across the top of the lots;
(b) Annexure 2 is a copy of a plan depicting the driveway extending over the Dicksons’ land and Lot 6, culminating at the garage situated on Lot 6.
7 For the following reasons, I find the Dicksons have established their claim to adverse possession of Lot 6. Given that finding, it is strictly unnecessary to determine Ms Butler’s claim for an easement over the Dicksons’ land. But if I am wrong on the adverse possession claim, I am not satisfied an easement was created under the doctrine of lost modern grant in favour of Ms Butler.
Background
8 The Dicksons’ land and Lot 6 were originally part of the same title, being Certificate of Title Volume 3265 Folio 760. This land was owned by Lucy Fenton from 1908. Ms Fenton subsequently subdivided her property and sold most of it to Frank Nicholson on 5 August 1911, with the exception of what later became known as 10 Jasper Road, Kalorama.
9 Lucy Fenton had a sister, Grace Stubbs, who is Mr Thompson’s grandmother.
10 Grace Stubbs had three children, namely Edward, John and Alma. Alma married John Thompson and changed her name to Alma Thompson. The late Mr Thompson was the child of Alma and John Thompson.
11 The land owned by Mr Nicholson was subdivided in December 1923 into six lots with a rear of way. The private road is the rear of way referred to in the Amended Statement of Claim and is subject to a carriageway easement in favour of all six lots. Mr Nicholson’s executors, Leslie Nicholson and Reginald Nicholson, were registered as proprietors of the rear of way on 17 March 1939. The rear of way is uncleared and has large trees on it which precludes vehicular access. A fence has been placed at the top of the rear of way.
12 Lot 6 was transferred from Mr Nicholson to Grace Stubbs on 17 March 1939. Mr Thompson became the registered proprietor of Lot 6 on 14 December 1940. Mr Thompson had a lifelong career in the Army and was stationed both interstate and overseas. He retired as a Colonel from the Army in 1971. He moved to New South Wales in 1949 and had lived in Sydney for many years before he died in 2012.
13 Lots 3 and 4 were transferred by Mr Nicholson on 9 March 1926. They were transferred again on 19 September 1927, and from 29 January 1941, the registered proprietor was Edward Stubbs (who also owned Lot 2 at the time). Mr Edward Stubbs was Mr Thompson’s uncle, being a brother of Grace Stubbs.
14 The ownership of Lot 5 was transferred from Mr Nicholson on 8 March 1926 and another owner took over from 27 September 1927. From 29 January 1941, the registered proprietor was John Stubbs. John Stubbs was also an uncle to Mr Thompson, being a brother of Edward Stubbs and Grace Stubbs. Up until 1977, Mr Thompson’s uncles owned the adjoining Lots 3, 4 and 5.
15 Nijole Jersovas (now Pengelley) bought Lots 3, 4 and 5 on 10 June 1977. During her occupancy, there was a timber gate at the corner of what later became the Dicksons’ land towards Bayview Terrace. She kept a guard dog on the property. Ms Pengelley sold in 1987. There were three sets of registered proprietors until 1992. Mrs Dickson was registered as proprietor on 15 July 1992. On 31 May 2001, Mr and Mrs Dickson were registered as joint proprietors of the Dicksons’ land.
16 10 Jasper Road, Kalorama adjoins the other side of Lot 6. This land was owned by Marijonas Vilkelis-Curas and Diane Vilkelis-Curas from 28 April 1970 until 9 September 1980. Since 15 June 2005, the registered owner of 10 Jasper Road has been Pamela Hodges, who resides there with her husband, Michael Witcombe.
17 Lot 6 is trapezoid in shape with Jasper Road to the north. The land is approximately 852 square metres in size. It has a gravel driveway, garage and small walking tracks. The driveway runs from the garage over Lot 6 onto Lot 5, being part of the Dicksons’ land. The driveway then continues over Lots 4 and 3 of the Dicksons’ land, passes over No. 4 Bayview Terrace (owned by Mr Zhang and Ms Wong) and then meets up with Bayview Terrace, which is a public road. Lot 6 is steep and the only level areas are where the driveway and garage are situated and, to a lesser extent, the walking tracks. The street frontage to Jasper Road has a very high embankment and there is no means of vehicular access from the road onto Lot 6. The property has the benefit of a registered easement of carriage over that starts at Jasper Road and runs along the boundary of Lot 6 and 10 Jasper Road and across the south, referred to in the amended statement of claim as the “rear of way”. The rear of way is densely vegetated and provides a barrier between 10 Jasper Road and Lot 6. The rear of way also extends across the top of the Dicksons’ land and is depicted in Annexure 1.
18 The parties agreed there had been a garage on Lot 6 since prior to 1963. The driveway that leads from Bayview Terrace, through part of 4 Bayview Terrace and through the Dicksons’ land onto Lot 6 ending at the garage has been present since about 1963.[3] It was also agreed there was a house on the Dicksons’ land in 1960. This house was no longer there in 1962 and the Dicksons’ current house was built in 1963 or 1964.[4]
[3]Statement of issues and facts provided by the parties dated 9 November 2017, paragraph 5
[4]Ibid, paragraph 8
19 The Dicksons’ land is also very steep. There is a modest house on their land which is built on stilts and abuts the driveway. The house is open plan with one bedroom. There is a gate at the south-east corner of the property on Lot 3. The gravel driveway runs from the gate through the property passing in front of the house, then continuing onto Lot 6 ending at the garage.
20 The Dicksons tenanted the Dicksons’ land from 1992 to 1996. In July 1996, they moved in and have remained in occupation since.
21 The Shire of Yarra Ranges wrote to Mr Thompson on 13 February 1997 informing him that the owner of Lot 5 was Ms C M Dickson, in answer to his request contained in a letter dated 21 January 1997.
22 In 2000, Mr Thompson telephoned Mr Dickson and informed him that he was the owner of Lot 6 and invited Mr Dickson to make an offer to buy the property. Mr Dickson declined to do so and said he regarded the call as a hoax. Despite this, subsequent enquires made at his request, including a titles office search revealed Mr Thompson was in fact the registered proprietor of Lot 6. There were no further communications between Mr Thompson and Mr Dickson after the telephone call in 2000.
23 On June 2013, Mr John Macey, a licensed surveyor, provided a survey report of Lot 6 at the request of Ms Butler’s lawyers. The driveway and garage are shown as encroachments on the plan. Mr Macey noted there were other items, such as two large water tanks stored on Lot 6.
24 Ms Butler met the Dicksons for the first time when she visited Lot 6 with friends on 9 August 2013 and was invited by the Dicksons into their home. This was shortly after she became the registered proprietor of Lot 6.
25 The Dicksons lodged a caveat claiming adverse possession over Lot 6 on 30 August 2013. The caveat was removed on 18 June 2015 following an application by Ms Butler’s lawyers dated 17 May 2015.
26 Mr Macey conducted a further survey of Lot 6 on 30 December 2015.
27 In December 2015, Ms Butler engaged Scott Allison, of Fletchers real estate agents to undertake the sale of Lot 6.
28 The Dicksons placed placards on their land around December 2015 giving notice to potential purchasers of their claim to adverse possession over Lot 6 and of their intention to block out future views by heavily planting along the entire length of the boundary.[5] Lot 6 has not been sold.
[5]The placards are at Court Book (“CB”) 330-336
29 Various offers were made by the Dicksons in 2013 and again in 2016 to purchase Lot 6, which were not accepted by Ms Butler.
30 The parties were unable to resolve their differences despite correspondence passing between the parties’ solicitors.
31 On 9 June 2016, Ms Butler’s solicitors filed the writ and statement of claim in this proceeding.
Issues
32 The issues that fall to be resolved are:
(a) Have the Dicksons adversely possessed Lot 6 or part thereof?
(b)If yes to (a), did Ms Butler or her father retake possession of Lot 6 or part thereof at any time?
(c)Did the offers made by the Dicksons to buy Lot 6 constitute an acknowledgement of Ms Butler’s title within the meaning of s24 and s25 of the Limitations of Actions Act 1958 (Vic) (‘the Act’)?
(d)If the adverse possession claim is not proved:
(i)did Ms Butler or her father use the Dicksons’ land, or part thereof, in such a manner for 20 continuous years that an easement arose under the doctrine of lost modern grant?
(ii)alternatively, have the Dicksons established an easement over Ms Butler’s land?
Legal principles regarding adverse possession
33 The principles relating to adverse possession are well settled. Judge Cosgrave recently referred to them in Laming v Jennings [2017] VCC 1223 where His Honour said at paragraph 22:
“The general principles relating to adverse possession were conveniently summarised by the Victorian Court of Appeal in Whittlesea City Council v Abbatangelo as follows:
‘[5]Before us, the parties agreed that the following comments made by Ashley J (as his Honour then was) in Bayport Industries Pty Ltd v Watson aptly summarise the relevant principles:
The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently:
“It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:
(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
(4) The animus possidendi, which is also necessary to constitute possession, … involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner.”
To those principles should be added and/or highlighted the following:
When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804.
As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn CJ said in Seddon v Smith (1877) 36 LT 168 at 1609: “Enclosure is the strongest possible evidence of adverse possession”. Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487 at 511A, similarly observed: “Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner”.
It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd v Chamberlain (1969) 20 P & Cr 633 at 642, per Sachs LJ.
A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession.
Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed …
Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal …
At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned.
[6]For the purposes of this appeal, the following additional principles are also relevant:
(a) The reference to ‘adverse possession’ in s 14(1) of the Act is to possession by a person in whose favour time can run and not to the nature of the possession. The question is simply whether the putative adverse possessor has dispossessed the paper owner by going into possession of the land for the requisite period without the consent of the owner, with the word ‘possession’ being given its ordinary meaning. Whether or not the paper owner realises that dispossession has taken place is irrelevant.
(b) Factual possession requires a sufficient degree of physical custody and control. Intention to possess requires an intention to exercise such custody and control on one’s own behalf and for one’s own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession.
(c) In considering whether the putative adverse possessor has factual possession, a court has regard to all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available and the course of conduct which an owner might be expected to follow. Each case must be decided on its own particular facts. While previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person’s dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another. For example, acts done by a putative adverse possessor who lives next to the relevant property may sufficiently evidence a taking of possession, whereas those same acts may be insufficient if done by a person who lives some distance from the property.
(d) The intention required by law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land.
(e) A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.
(f) Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But while a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess.
(g) Mere use falling short of possession will not suffice. In some circumstances, a person’s use of land may amount to enjoyment of a special benefit from the land by casual acts of trespass and will neither constitute factual possession nor demonstrate the requisite intention to possess. For example, where vacant land abutted a putative adverse possessor’s land, occasional tethering of the claimant’s ponies on the vacant land, and grazing them there, and occasional playing on the vacant land by her children were held not to suffice. Use and enjoyment of a special benefit and exclusive possession are not, however, necessarily mutually exclusive, for exclusive possession will usually entail use and special benefit. Use and enjoyment of a special benefit, on the other hand, will not necessarily amount to exclusive possession.
(h) There is no separate requirement that the use to which the land is put by the putative adverse possessor be inconsistent with the paper owner’s present or future intended use of the land, as suggested by Leigh v Jack. In Monash City Council v Melville, Eames J reviewed the history of the rule in Leigh v Jack and said the following:
To the limited extent that the rule still applies its effect, now, is as follows. Where the trespasser’s acts had not been inconsistent with the future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established; [l]ikewise it may more readily be concluded that the requisite elements to constitute adverse possession had not been established where the land is waste land and the possessor had not done any acts to manifest an intention to dispossess the owner.
However, where the trespasser had done acts which plainly manifested an intention to dispossess the owner, and where the acts would otherwise lead to the conclusion that adverse possession had been established, the fact that the land was waste land or was set aside for some future public purpose, did not introduce any special rule which gainsaid that conclusion.
It was not suggested before us that Eames J incorrectly stated the law in relation to the present limited effect of the rule in Leigh. We would therefore proceed on the basis that his Honour correctly stated the law even if it was not for the subsequent decision of the House of Lords in Pye, where Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh:
The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong … The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such an inference could be properly drawn in cases where the title owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.
(i) While inconsistent use is not required, it may be a factor, where it is present, which is indicative of factual possession and of an intention to possess to the exclusion of the paper owner.’ ”
34 The matters a Court will take into account in determining possession for the purposes of making a finding of adverse possession were also discussed by Judge Cosgrave in Laming. The principles were summarised by his Honour as follows:
“143Possession for the purposes of acquiring title to land by operation of the Limitations Act requires both physical possession and the intention to possess. Factual possession signifies an appropriate degree of physical control. To determine what constitutes a sufficient degree of exclusive physical control will depend on the circumstances of each case including the nature of the land and the manner in which it is commonly used. As put by Jennings in reliance on the judgment of Slade J in Powell v McFarlane, the alleged adverse possessor must show that he or she has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.
144In considering the matter of physical control of the land, the authorities suggest that there are some general considerations to bear in mind.
145First, the Court should pay regard to the nature of the land in question and the way in which such land is commonly used or enjoyed.
146Secondly, possession is determined objectively. Thus, the resources or status of the party alleging possession are irrelevant.
147Thirdly, a squatter does not need to use the land continually to be in possession. For example, where marshland suitable only for shooting was in issue, intermittent shooting over the land could constitute factual possession. Similarly, a squatter with tenants in possession of the land can remain in possession even if there is a gap between the occupation of successive tenants.
148Finally, the use of the land must be such that if the paper owner paid attention to what was happening on the land, it would have been obvious that there was a squatter in possession. While the paper owner can be dispossessed without knowing of the existence of the squatter, the latter is bound to take sufficiently assertive steps so that if the paper owner were present on the disputed land, he would realise that the squatter was not just a trespasser but someone seeking to take possession of the land from him.
149As to the animus possidendi, the claimant must have the intention to possess the land and evidence his intention by his conduct. Thus, the party claiming adverse possession must intend to exercise exclusive custody and control over the land for his or her own benefit.
150The formulation of animus possidendi by Slade J in Powell v McFarlane creates a problem insofar as a squatter who has not been in adverse possession for at least 15 years cannot lawfully exclude the paper owner from the property. Hence, before the 15 years elapses, it is not particularly sensible to require the squatter to exclude the paper owner “so far as the process of the law will allow.” Lord Hope in JA Pye (Oxford) Ltd v Graham said that it was not necessary for the claimant to show a deliberate intention to exclude the paper owner. All that was required was an intention to occupy and use the land as one’s own.
151Some cases seem to suggest that where a claimant, who in fact has no easement or profit à prendre, nonetheless uses the disputed land in a manner consistent with such right, the claimant will not be treated as manifesting the requisite animus possidendi. The acts relied upon must be unequivocal. If they are equivocal, the benefit of the doubt should favour the paper owner and not the trespasser. This is consistent with the requirement that a squatter who claims title by way of adverse possession without the consent of the paper owner, must prove the claim to a high standard. So, for example, in Powell, the claimant at the start of the limitation period was a teenage boy. He used the disputed land to graze the family cow. He took a hay crop from the land. He made some basic repairs to the boundary fences to make them stock-proof. He cleared brambles and trees to increase the area available for growing hay. He allowed a friend to have a goat there and he shot pigeons and rabbits from time to time. Slade J held that these acts did not constitute possession. The use amounted to the taking of profits.
152The trial judge commented in his judgment that there were few acts which pointed unquestionably in the absence of other evidence to an intention to appropriate the disputed land: ploughing and cultivating agricultural land; enclosing land by a fence; placing a notice warning people to keep out and taking enforcement action; locking or blocking the only means of access.
153In Tecbild Ltd v Chamberlain, the claimant asserting title by adverse possession relied upon acts to exclude the paper owner which the Court considered were even less than equivocal, to the extent that they did not seem to provide an equal balance between an intent to exclude the paper owner from possession and an intent to derive some enjoyment from the disputed land wholly consistent with the use which the paper owner might make of the land. The defendant who asserted adverse possession relied upon her children playing on the land, the family ponies grazing and being sheltered on the land, and the existence of a rough fence which was created years before by persons unknown. Another judge saw no merits in the defendant’s case, and the third described the acts relied upon as ‘trivial acts of trespass’.
154Thus, the legal position seems to be that a claimant by adverse possession cannot rely upon equivocal acts to manifest the animus possidendi unless they are accompanied by communications to the paper owner making clear that the claimant has taken control of the disputed land.
155For a claimant’s actions to evidence an intention to possess some land, that land must be clearly identified or separate from other land which the claimant does not possess.
156There are some authorities dealing specifically with aspects of the conduct relied upon here by Jennings. In Treloar v Nute, the claimant relied upon several matters: he grazed a couple of cows and yearlings on the disputed land and did some work on the northern boundary of that land; he took some spoil to the disputed land and used it to fill a gully; he stored some stone and timber on the disputed land; he and his brother rode motorbikes on the disputed land. The Court of Appeal said that changing the surface of the disputed land by putting soil in the gully was important because it set in train the process by which the land was levelled and the defendant could commence building a bungalow. The other acts relied upon were said by the Court to be ‘of very little weight’. The disputed land in Tecbild v Chamberlain, was land adjacent to the claimant’s property. The paper owner had not used the land for over 30 years. During that time, the claimant had grazed ponies on the land and let her children play on it. The Court of Appeal found that the claimant was never in possession.
157Apart from cases already referred to (some of which are the fruit of my own research), the parties did not refer the court to other cases which discussed acts of the kind relied upon here by Jennings. It appears from cases such as Powell v Macfarlane and Cobham v Frett that whether cutting trees, turf or grass on disputed land is significant will depend at least in part upon the broader context. The court was not satisfied in Powell v Macfarlane that the acts relied upon were sufficient to constitute adverse possession. Likewise, in Cobham v Frett, the claimant engaged in intermittent acts over an unfenced boundary like cutting down trees, burning coals, grazing cows, fishing in a pond and taking sand from time to time. These acts were held insufficient to constitute possession. The principle seems to be that cutting and taking wood, turf or grass which grows on the land of the paper owner is by itself equivocal and cannot be treated as amounting to possession. Such conduct could be referrable to a profit-à-prendre and so the claimant cannot satisfy the animus possidendi requirement for possession.”
35 In addition to the common law principles, adverse possession is dealt with under the Act. Section 8 provides that no action shall be brought to recover any land after the expiration of 15 years from the date on which the right of action accrued. Under s9, the cause of action for recovery of land accrues on the date of dispossession or discontinuance. Section 14(1) provides the land must be in adverse possession of some person as against the person otherwise entitled to the land. By s16, neither formal entry on the land nor a continual or other claim by the paper title owner is sufficient to stop the time running. After the expiration of 15 continuous years of adverse possession, the title of the person who owns the land is extinguished under s18.
36 Section 42(2)(b) of the Transfer of Land Act 1958 provides that the title of a registered proprietor is subject to any rights subsisting under any adverse possession of the land.
Have the Dicksons adversely possessed Lot 6 or part thereof?
37 Counsel for the parties agreed that if the claim for adverse possession by the Dicksons was made out, then the plaintiff’s claim for an easement would fall away. Similarly, if the Dicksons are entitled to adverse possession, then their claim for an easement falls away.
38 Counsel for the defendants said in final submissions that the relevant start date for the adverse possession claim was 1996 or 1997 or thereabouts, this being the time when they moved into occupation and commenced using Lot 6.
39 There was no dispute that any end date for the adverse possession claim was June 2013, when Ms Butler engaged Mr Macey to survey the land. Counsel for the Dicksons conceded the taking of a survey would amount to an act of repossession by the true owner and, consequently, that would be the end date as far as setting the time period for the relevant 15‑year period.
40 The enquiry then is whether the Dicksons have had exclusive occupation and physical control of Lot 6 with the intention to exclude all others, including Mr Thompson and Ms Butler in an unequivocal way for a continuous period of 15 years or more. The resolution of that enquiry involves consideration of the nature of the acts performed by the Dicksons over the relevant period and their intentions in respect of Lot 6.
41 At the time of purchase, the Dicksons’ land had a white house on it in need of some repair, the driveway was sparsely gravelled, and at the edge of the plaintiff’s property (facing Bayview Terrace) was a timber gate. The land was said to be covered in blackberry, ivy, broom brush, seaside daisy and native grasses which collectively covered the whole of Lot 6, excluding the driveway and garage. The Dicksons started to remove blackberry from 1992 and re-gravelled the whole of the driveway in 1994.
42 After moving in July 1996, the Dicksons began using Lot 6 for residential purposes. There is no obvious means of delineation from their property and Lot 6, such as a fence or other boundary markings. They secured the property from entry via Bayview Terrace by replacing the existing timber gate with the current wire gate within a few weeks of moving in and secured the gate with a chain and a lock. They also gave evidence that the chain lock was used whenever they were away from the property or if Mrs Dickson was alone for an extended time. The gate is now locked at all times since 2014. The gate thus prevents cars from entering upon the driveway so that access to Lot 6 is blocked.
43 The Dicksons then also commenced the process of clearing Lot 6 while retaining a vegetative barrier between Lot 6 and 10 Jasper Road. Other works included installing a fence and gate near the garage to restrict access to Lot 6 from 10 Jasper Road via what was described as a goat track.
44 The works undertaken by the Dicksons clearing Lot 6 included the removal of ivy, the spraying of blackberry, brush-cutting of grasses, removal of debris around the garage and burning off. They said this process was undertaken for three or four years. After Lot 6 was cleared, it was then maintained every year except 2017 because of the appearance of a snake. Such maintenance included regular burning off the green waste. The defendants said that they spent considerable time in these processes and such efforts were particularly burdensome for Mr Dickson, given his poor health.
45 The Dicksons installed walking tracks into the surface level of the plaintiff’s property for access purposes to their land. They maintained the driveway, including re-gravelling it again in 1996 and 2005, and later widening it to assist with the entry of trucks and for vehicles to turn – although that widening did take place on parts of the driveway on the Dicksons’ land. They used the driveway to access the garage and also to place various ornaments, including statues, a seat, plants, firewood, two water tanks, a barbecue and a trailer on Lot 6. The Dicksons installed an automatic watering system for the plants on the driveway near the garage on 18 November 1998 which was modified on 9 April 2002. They used the plaintiff’s property generally for recreational purposes and referred to Lot 6 as their “forest”. Mr Dickson’s evidence about the various works undertaken by him and Mrs Dickson on Lot 6 was corroborated by a large number of contemporaneous written receipts in respect of the items purchased. There was no challenge made about the authenticity of these receipts.
46 The Dicksons gave evidence that neither of them have worked since they moved into occupation of the Dickson’ land. They do not do any volunteer work or have any hobbies that might take them away from home. Mr Dickson lives on a pension. They occasionally visit their other property in the Otways, possibly up to 30 days a year for Mr Dickson and half that time for Mrs Dickson. They have had only one holiday, being a trip to Tasmania in about 2006. Mrs Dickson does not drive. She is however a keen jogger and runs around the Dicksons’ land and Lot 6 regularly. Mr Dickson suffers from poor health and is restricted in the type of maintenance work he can do as a result. Their home sits next to the driveway so they have a clear view of the driveway running past their place and up to the garage on Lot 6.
47 The Dicksons have a key to the garage which was provided to them by their managing real estate agent after their tenants left. As shown on Annexure 1, the garage is located on Lot 6. They gave evidence that they used the key and kept the garage locked after they moved in 1996. The Dicksons stored a variety of items in the garage, including numerous handyman items, such as saw horses and a quad bike. Mr Dickson said they visited the garage frequently, up to 7 times a week or more.
48 Neither Mr Thompson nor Ms Butler used the shed for storage during 1996 to 2013. Ms Butler did not have a key to the garage. The Dicksons undertook some running repairs to the garage’s roof and later replaced the roof on 4 September 2015.
49 During the time of their occupation, the Dicksons said they did not see anyone connected to Mr Thompson or his family until June 2013 when Mr Macey, the surveyor, appeared to conduct a survey of Lot 6. There was no evidence from the plaintiff’s side that Mr Thompson ever met the Dicksons or that Ms Butler did so prior to the meeting in 2013.
50 The first time that Mr Dickson became aware that Lot 6 did not belong to him was when he received a telephone call from Mr Thompson in 2000. Mr Dickson was unable to recall the exact date of the call. Mr Thompson told him he owned the garage and the land it was on. Mr Thompson offered to sell him the land for $35,000. Mr Dickson’s evidence was that he regarded the phone call as a hoax. Despite this, he made subsequent enquiries from the council and the Titles Office. A Titles Office search revealed that Lot 6 was in fact owned by Mr Thompson and not by the Dicksons. Counsel on his behalf put it that if Mr Dickson thought he owned the land up until 2000, that was evidence of his subjective intention to adversely possess because if Mr Dickson thought he owned it, this showed he intended to possess Lot 6.
51 The evidence of Mr Dickson that he was unaware that he was not the owner of Lot 6 and that he thought he had bought it together with the other lots, Lots 3, 4 and 5, is difficult to accept for the following reason. Mr Dickson was well-versed in the buying and selling of property, giving evidence that he had purchased his first home when he was 19. He then apparently engaged in the buying and selling of property such that he was able to retire at the age of 37. He also had been involved in buying and subdividing land in the Otway Ranges. His evidence that he did not read the vendor’s statement in detail in 1992 as it had too much information is unlikely, given his experience in such matters. The vendor’s statement shows clearly from the titles attached that the subject of the sale was Lots 3, 4 and 5.[6] Mr Dickson claimed the selling estate agent told him the land for sale extended to the garage. This may be so but it is highly improbable that he did not check the title particulars when the purchase occurred in 1992. Mrs Dickson gave evidence that she thought they owned Lot 6 when she purchased in 1992 but did not involve herself in the details of the purchase which was handled by her husband.
[6]CB 833-851
52 Ultimately, the question of whether the Dicksons had knowledge of the existence of the title owner or not does not affect their right to claim adverse possession.[7] The fact that the title owner contacted Mr Dickson in 2000 and advised him of the true position is not regarded as being an act of dispossession, such that the time running for the adverse possession claim would stop. There is various authority to that effect.[8]
[7]Whittlesea City Council v Abbatangelo [2009] 259 ALR 56, [6]
[8]Whittlesea City Council v Abbatangelo [2009] 259 ALR 56, [101]; Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078, 1083
53 Subsequent to receiving the phone call from Mr Thompson, the Dicksons said they heard nothing further from him. This is consistent with Ms Butler’s evidence. Thereafter, the Dicksons continued their activities in terms of conducting maintenance works on Lot 6, using the garage, the driveway on Lot 6 and the remaining parts of Lot 6 for recreational use.
54 The next occasion upon which it comes to their attention that their claim to possession of Lot 6 was being challenged is when Ms Butler engaged Mr Macey to conduct a survey of the land in June 2013.
55 Ms Butler gave evidence that she paid the council and water rates on Lot 6 as had her father before her.[9] The payment of rates however is not conclusive and only one of the indicia a court will take into account.
[9]See Exhibit “P2“
56 The payment of rates by the owner raises only a slight inference of the question of actual possession. Conversely, the payment by the person who is in adverse possession offers a very much stronger inference in his or her favour than the payment by the owner of the title.[10] The payment of rates is far from determinative and is often of slight significance where the rates continue to be paid by the legal owner as distinct from the adverse possessor.[11] In my view, the payment of the rates by Mr Thompson and Ms Butler was insufficient by itself to displace the Dicksons’ claim for adverse possession.
[10]O’Neil v Hart [1905] VLR 107 at 120
[11]Refina Pty Ltd v Binnie [2009] NSWSC 914, [25]
57 Although fencing is not always conclusive to establish an adverse possession claim, it is a powerful factor to take into account when assessing both factual intention and intention to possess. Control of entry is arguably the best evidence of exclusive physical control and intent to exert that control.[12] The driveway was the only means of vehicular access to Lot 6. By keeping the gate (on Lot 3) locked at the start of the driveway on the Dicksons’ land, access to Lot 6 was blocked. Ms Butler gave evidence her father had noticed the gate was locked in 2006.
[12]KY Enterprises Pty Ltd v Darby [2013] VSC 484, [71]
58 The rear of way to the top of Lots 3, 4, 5 and 6 is fenced in. Although access to the rear of way can be conducted on foot, given the vegetation, including trees on the rear of way, vehicles could not pass over the rear of way as a means of access to Lot 6. There is a vegetative barrier between Lot 6 and 10 Jasper Road on the rear of way between those properties. The only other remaining boundary to Lot 6 is the boundary abutting Jasper Road. The embankment rising up from Jasper Road on Lot 6 is extremely steep and would not permit vehicular access unless significant alterations were made.
59 Consequently, I am satisfied the Dicksons did enclose Lot 6 with the intent to exclude others by preventing access to the driveway that led from their property onto Lot 6.
60 Having regard to the extensive nature of the activities undertaken by the Dicksons, I find they were in exclusive and factual possession of the whole of Lot 6 from 1996 onwards, which was not limited solely to the use of the driveway and the garage.
61 I regard the acts which the Dicksons engaged in as being unequivocal acts of possession, such acts having continued for a period of 15 years or more commencing in 1996.
62 The other element that has to be satisfied is that the adverse possessors must have the necessary intention to exclude all others. Intention does not mean there must be a conscious intention to exclude the true owner: what is required is an intention to exercise exclusive control.[13] The evidence establishes to my satisfaction that the Dicksons did have the necessary intention as they exercised control over Lot 6 to the exclusion of others. Accordingly, I find that the Dicksons have made out their claim for adverse possession, being a period commencing in 1996 with the relevant 15 year period expiring in 2011.
[13]Kierford Ridge Pty Ltd v Ward [2005] VSC 215, [132]
63 Although Mr Dickson only became registered on title in 2001, an adverse possessor can rely upon acts undertaken by a former occupier. Mrs Dickson owned the land since 1992 and therefore, Mr Dickson is able to rely upon her ownership in support of their joint claim to adverse possession.[14]
[14]Whittlesea City Council v Abbatangelo [2009] 259 ALR 56, [74], [109]; Wallis’s Caton Bay Holiday Camp Pty Ltd v Shell-Mex and BP Ltd [1975] QB 94, at 110
Did Ms Butler or her father retake possession of Lot 6 or part thereof?
64 The actions of Ms Butler and her father need to be considered during this period to ascertain whether or not any of their conduct during the period between 1996 and 2011 was sufficient to retake possession, so as to stop the time running for adverse possession by the Dicksons. If a title owner wishes to stop time running, then the title owner must retake possession.
65 Ms Butler gave evidence about a number of visits she and/or other family members made to Lot 6 between 1996 onwards. There was also evidence about earlier visits although these are not relevant to the enquiry about adverse possession between 1996 and 2011. Ms Butler was subjected to an extensive cross examination challenging her reliability as a historian of events. Whilst counsel for the defendants did not suggest she was dishonest, he submitted I should disregard all her evidence because of what he described as her lack of credibility due to her unreliability. I found Ms Butler to be a witness of truth. Whilst her memory of events was shown to be inaccurate at times, this was not surprising given the length of time that has elapsed since these events occurred and the fallibility of human memory in general. Much of her evidence related to matters her father had told her over a long period and again, it is hardly remarkable that sometimes her recollection was a bit hazy. I have not disregarded her evidence as requested by the defendants. It emerged in evidence that Mr Dickson’s memory was also fallible as he admitted to a number of factual mistakes in various letters he had written.
66 In order to retake possession, shared use is not sufficient unless the use is inconsistent with the enjoyment of the land by the person then in possession of it, here the Dicksons. The requirement is that the possession must be single and exclusive distinguishes it from mere occupation of the land. There is a distinction between possession and use in principle so that even use by the paper title holder with the permission of the adverse possessor will not be sufficient in itself to stop time running.[15]
[15]KY Enterprises Pty Ltd v Darby [2013] VSC 484, [136] to [141]
67 The evidence is clear that the Dicksons had no knowledge of any visits by Mr Thompson or other family members of Ms Butler until the latter attended in 2013. Even accepting the accuracy of the visits described by Ms Butler, many of which were strenuously contested by counsel for the defendants, these visits did not amount to acts of retaking possession.
68 The visits between 1996 and 2011 by the plaintiff and/or her family were as follows:
(i)an attendance by Ms Butler, her parents and her children in 1997 when she drove down the driveway on to Lot 6 and they looked around;
(ii)a visit by the plaintiff and her father in 2003 to inspect Lot 6 in response to a fire prevention notice ;
(iii)visits by Ms Butler in 2005, 2009, 2010 but she did not go onto Lot 6;
(iv)a visit by Mr Thompson in 2006 following the ANZAC day parade when he saw the gate to Lot 3 for the first time – it is not known whether he entered Lot 6 on this occasion;
(v)a visit in 2006 by Ms Butler and her father, the latter stayed in the car on Bayview Terrace and Ms Butler walked onto Lot 6 down to the garage;
(vi)Ms Butler’s son, Marcus Butler visited in 2011 but did not enter the Dicksons’ land or go onto Lot 6.
69 The mere entry onto the land on sporadic occasions does not amount to retaking of possession. Such use was not inconsistent with the enjoyment of the land by the Dicksons, as is required for possession to be retaken. There can only be one person in possession. In my view, the visits listed above did not amount to the retaking of possession by the plaintiff or her father. I consider this is apparent from the nature of the visits themselves which were brief and intermittent. Further, on none of these occasions was their presence made known to the Dicksons. I find that neither Mr Thompson nor Ms Butler retook possession of Lot 6 on any of these visits. Counsel for Ms Butler referred to the expression “ships in the night” which is accurate in the sense that neither the Dicksons saw anyone connected to the Thompson family, nor did Mr Thompson or Ms Butler encounter the Dicksons on their visits, until Ms Butler met the Dicksons in 2013. Mr Murray Vilkeis-Curas gave evidence that he never saw anyone connected with the Thompson family on Lot 6 during the time he occupied the neighbouring property at No 10 Jasper Road. He lived there from to 1970 to 1980.
70 A claim for adverse possession can also be defeated if the adverse possessor is there by permission of the paper title holder.[16] Ms Butler said her father had given permission to the former owner of the Dicksons’ land, Ms Pengelley to use the garage and presumed he gave her the key to the garage. She also said that this permission continued with the subsequent tenants before Ms Dickson bought the Dicksons’ land. By contrast, Ms Pengelley said she had been given the key to the garage by Mr Stubbs, the former owner of the Dicksons’ land. It became apparent during the course of Ms Pengelley’s’ evidence, that she was genuinely surprised to learn that she had not been the owner of Lot 6 as well. She was clearly mistaken in that belief as she was never registered on the title to Lot 6. Ms Pengelley thought her land extended across to 10 Jasper Road and included the garage. She said she never met Mr Thompson during the 10 years she was there.
[16]Abbatangelo v Whittlesea City Council [2007] VSC 529, [42]
71 The Dicksons were given the key to the garage by the real estate agents who sold them the land. They had no contact with Mr Thompson whatsoever until he rang Mr Dickson in 2000. Consequently, it has not been proved that the Dicksons were in occupation of Lot 6 with the permission of Mr Thompson so as to defeat a claim for adverse possession.
72 The next matter that could possibly amount to an act of repossession was the evidence given about fire prevention maintenance said to be undertaken at the behest of Mr Thompson. The Dicksons, not unsurprisingly, gave evidence that they were unaware of any maintenance works having been conducted on the site by anyone else. Ms Butler said she and her father had attended Lot 6 in January 2003 after her father had received a fire prevention notice in 2002. She said her father has received such notices in the past from the late 1990s onwards and her belief was that he had arranged for any maintenance work that needed to be done to ensure compliance. At the time of the visit in 2003, no maintenance work had been done. Ms Butler’s belief was that her father subsequently engaged a contractor whom he had used before. She did not witness any maintenance work being performed.
73 I am not satisfied on the evidence that the plaintiff proved maintenance work was done by contractors engaged by the late Mr Thompson in 2003. The evidence in that regard did not go far enough in my view. But assuming that some maintenance works were conducted, it is not established that these works were sufficient acts which would constitute the retaking of possession as is contemplated by law. In other words, they needed to be acts which amounted to retaking physical possession such that the adverse possession is brought to an end by dispossessing the Dicksons.[17] In Robertson v Butler,[18] it was found that entering upon a country grazing property three or four times and walking about, occasionally shooting rabbits, picnicking, and sometimes putting up notices about cutting wood did not amount to retaking of possession by the title owner. Nor did writing a letter objecting to the unauthorised occupation or sending a man to enquire about grazing and to report back. Cussen J held these acts did not amount to a resumption of possession nor were sufficient to divest the possession from the adverse possessor and re-vest it in the title owner. His Honour continued that the effect of an entry is a question of fact and each case must be decided on its own circumstances.
[17]Zarb v Parry [2012] 1 WLR 1240
[18][1915] VLR 31 at 37
74 Mention was also made in the evidence of plans that Mr Thompson had in respect of building a house on Lot 6. There were dealings by him with the Council in 1984 and subsequently about the possibility of getting approval to build a home. Mr Thompson obtained plans from two builders, AV Jennings and Bisley Homes. Ms Butler gave evidence that her father ultimately did not pursue this matter following the death of her mother in 2000. But the fact that Mr Thompson may have contemplated building a house on the site was unknown to the adverse possessor. In order to retake possession, the relevant act must be brought to the notice of the person in adverse possession. The Dicksons were unaware of any plans that Mr Thompson may have had regarding building a house on Lot 6 Ms Butler said her father had written a letter in 1997 to Mr Dickson advising him of father’s intention to build a house on Lot 6. She did not see a copy of the letter. Mr Dickson denied having received it. But again, the mere fact that such a letter might have been sent does not of itself amount to an act of retaking possession. Therefore, there was no act of retaking possession simply because Mr Thompson had plans drawn up, corresponded with the council and made enquires about borrowing money to fund the building of the proposed home.
75 The effect of all this is that I am not satisfied that the various acts which Ms Butler gave evidence about which occurred between 1996 and 2011, amounted to sufficient acts of repossession by the then title owner, her late father.
76 By the time Ms Butler became the registered proprietor, the Dicksons’ claim for adverse possession had already accrued. Her late father had not taken any steps to retake possession with the result that the time continued to run against him as the title owner. The risk a title owner faces is that if he or she is not diligent to protect their ownership, dispossession can occur,[19] which is the position here.
Did the offers by the Dicksons to Ms Butler constitute an acknowledgement of Ms Butler’s title within the meanings of s24 and s25 of the Act?
[19]Whittlesea City Council v Abbatangelo [2009] 259 ALR 56; Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078
77 Section 24 of the Act provides as follows:
“(1)Where there has accrued any right of action (including a foreclosure action) to recover land or any right of a mortgagee of personal property to bring a foreclosure action in respect of the property, and—
(a) the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or
(b) in the case of a foreclosure or other action by a mortgagee, the person in possession as aforesaid or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest—
the right shall be deemed to have accrued on and not before the date of the acknowledgment or payment.
(…)”
78 Section 25 of the Act states the acknowledgment is to be in writing signed by the person making the acknowledgment. The acknowledgment by the person (or his agent) is to be made to the person (or his agent) whose title or claim is being acknowledged.
79 The effect of an offer made was considered by Judge Cosgrave in Laming, where his Honour said as follows:
“120It is well established that a possessory claim will be defeated if the possessor acknowledges the title of the paper owner and an offer to purchase the property by a person claiming possession will often be treated as a form of acknowledgment of the superiority of the paper owner’s title.
121However, the courts are wary of laying down general rules on the issue because it always depends upon the context of the alleged acknowledgment and the actual terms of the acknowledgment. Where there is a simple situation of a person offering to purchase a property, that person is saying, as between himself and the person to whom the offer is made, that the offeror realises and accepts that the offeree has a better title to the land in question than the offeror. This is a plain form of acknowledgment.
122By way of comparison, a letter challenging the ownership of the paper owner, but offering by way of compromise to accept a tenancy, is not an acknowledgment. Negotiations for the compromise of a bona fide claim for possessory title do not of themselves equate to an acknowledgment of title, at least where they do not result in a final bargain. The position was summarised by Windeyer J in Phillips v Marrickville Municipal Council as follows:
While it is clear that a simple offer to purchase from the documentary title owner would usually amount to confirmation … that cannot be said to be the position when such an offer is made as part of negotiations between parties claiming entitlement to land in dispute: Edginton at 377; Cawthorne v Thomas (1993) 6 BPR 13840 at 13845.
123Laming argued that the only reported case where an offer to purchase was not regarded as inconsistent with the animus possidendi was Kierford Ridge Pty Ltd v Ward. The offer there was made in the context of an existing claim of adverse possession and as a reasonable way of settling the dispute without giving away the claim which was, and continued to be, asserted. Laming submitted that Kierford Ridge was distinguishable on its facts. I accept this submission.
124Usually where the signed offer to purchase is in writing and the other evidence does not raise qualifications about the context of the offer, that offer will constitute an acknowledgment of the plaintiff’s title. This has the effect of restarting the limitation period under the Limitations Act.”
80 The evidence reveals that the Dicksons made a number of offers to Ms Butler to purchase Lot 6. Counsel for the defendants submitted that any offers made to the plaintiff did not affect the intention to possess the land or its possession thereof.[20]
[20]Defendant’s submissions paragraphs 104A, 107
81 An offer to purchase may be a form of acknowledgment that the offeree has a superior title:
“If a man makes an offer to purchase freehold property, even though it be subject to contract, he is quite clearly saying that as between himself and the person to whom he makes the offer, he realises that the offeree has a better title to the freehold land than himself, and that would seem to be the plainest possible form of acknowledgment.”[21]
[21]Edginton v Clark [1963] 3 All ER 468, at 471; endorsed in Refina Pty Ltd v Binnie [2009] NSWSC 914, [29] and Laming v Jennings [2017] VCC 1223, [120]
82 There is no absolute rule that an offer to purchase freehold property is an acknowledgment that the offeree has a better title than the offeror. Consideration must be given to the whole of the terms of the supposed acknowledgment and its circumstances.[22]
[22]Refina Pty Ltd v Binnie [2009] NSWSC 914, [29]
83 An offer to purchase will not always amount to an acknowledgment of title, but it can be said that such an offer is made as part of the negotiations between parties claiming entitlement to the land in dispute.[23]
[23]Laming v Jennings [2017] VCC 1223, [122]
84 Significantly, any letters amounting to confirmation after the limitation period are insufficient to revive an extinguished title.[24]
[24]Phillips v Marrickville Municipal Council [2002] NSWSC 396, [20], referring to re Alison (1879) 11ChD 284 at 295
85 Where there is an acknowledgment, the right of action accrues from the date of acknowledgment and has the effect of resetting the limitation period (s24 of the Act). Indeed, the mere sending and receipt of a letter asking for delivery of possession does not stop time running under the Act. As was said in Mount Carmel Investments Pty Ltd v Peter Thurlow Ltd [1988] 3 All ER 129 at 133:
“We do not accept that, in a case where one person is in possession of property, and another is not, the mere sending and receipt of a letter by which delivery up of possession is demanded, can have the effect in law for limitation purposes that the recipient of the letter ceases to be in possession and the sender of the letter acquires possession.”
86 There were four letters sent by the Dicksons. The first letter was sent by Mr Dickson to Mr Kevin Rogers, a solicitor retained by Ms Butler in New South Wales, dated 22 July 2013 (“the first offer”). The letter noted that:
“Because of the threatening nature of the solicitor’s letter we were forced to see our lawyer/solicitors regarding the situation you put us in. He strongly suggested because we had maintained the property and the garage for 21 years we had a legal right to obtain Lot 6 through adverse possession.”
87 The letter continued:
“The action we can take is as follows –
1. As our lawyer/solicitors strongly suggested we acquire the land legally through adverse possession at a cost of $1800. A very tempting possibility to leave it for now – no – we want to finalise this matter though we have absolutely no obligation to do this but we are prepared to offer $10,000 (a lot of money for us) for the next 30 days. This is our first and final offer.”[25]
[25]CB 617
88 The letter concluded by saying that if a response was not received in the next 30 days the Dicksons would proceed with legally acquiring Lot 6 through adverse possession. No written response was provided to the first offer by Ms Butler.[26] Ms Butler admitted in her evidence that the Dicksons always said they would go for adverse possession.[27]
[26]T274
[27]T280
89 The next letter of offer was made on 3 October 2013 (“the second offer”). The second offer was a letter sent by Mr Dickson to Ms Butler, and said amongst other things that they felt:
“... totally comfortable going for adverse possession as the land has no value to anyone else. We’re not trying to acquire the land so we can rip you off by making some sort of financial windfall. It is a 100 per cent privacy issue.”
90 The offer made was that the Dicksons would agree to putting Lot 6 50 per cent into Ms Butler’s name and 50 per cent to themselves, with a clause that if anything is to be done to the land both parties have to agree. Similarly, Ms Butler did not make any response to this offer.[28]
[28]T286
91 The third offer came by way of a letter dated 6 October 2013 (“the third offer”). The offer of 50 per cent ownership was renewed, though it was said that there was a good chance if it went to court the Dicksons would get 100 per cent ownership. The letter continued “If we don’t hear from you we’ll certainly be going for adverse possession”, as Mr Dickson said he wanted to protect his wife from possible hassles in the future. Again, Ms Butler made no response to this offer.[29]
[29]T286
92 The final offer was made in a letter dated 24 May 2016 (“the fourth offer”). The Dicksons offered to pay the sum of $35,000 for Lot 6. They referred to it as their best and final offer, and said that if it was declined they would have no choice other than to go for adverse possession. They referred to the legal costs that would far outweigh the real value of No 12 Jasper Road. Ms Butler did not accept this offer, nor did she respond.[30] The letter was also provided to the real estate agent engaged by Ms Butler, Mr Scott Allison.[31]
[30]T299
[31]T298
93 The offers to purchase the land were also coupled with statements by the defendants that they would continue with their adverse possession claim if the offers were not accepted. As such, the letters did not specifically acknowledge the plaintiff was in possession of the land, and showed a clear intention by the defendants that they intended to remain in possession. Consequently, as a matter of construction, I find the letters did not amount to a sufficient acknowledgment of the plaintiff’s title. But in any event, this analysis is redundant to the extent that the first three offers made in 2013 and the fourth offer in May 2016 were made well after the relevant time period for adverse possession by the Dicksons had accrued. Consequently, the offers being made outside the relevant period are of no effect, even if there had been sufficient acknowledgment of the plaintiff’s title.
94 A related issue is whether the defendants acknowledged the title of Mr Thompson when he made his telephone call in 2000. The evidence was that Mr Dickson was rung up by Mr Thompson, who informed him that it was his land and made an offer to sell the property to Mr Dickson. Apart from this phone call, the Dicksons did not receive any other calls or letters from Mr Thompson or his representatives after this call. Mr Dickson’s evidence was that he regarded the call as a hoax.
95 There is no evidence before the court to suggest that Mr Dickson made any oral acknowledgment of Mr Thompson’s title to the land. Furthermore, even if he had, such an acknowledgment would be ineffective because s25 of the Act requires the acknowledgment to be in writing and signed by the maker of the acknowledgment. Consequently, I am not satisfied there was any relevant acknowledgment by Mr Dickson during the course of the phone call in 2000 such that the adverse possession period would have stopped. Furthermore, there was no acknowledgment in writing by Mr or Mrs Dickson as is required under the Act.
Has an easement been created in favour of Ms Butler over the Dicksons’ land?
96 Ms Butler claims an easement over the driveway on the defendants’ land arising out of the doctrine of lost modern grant.[32]
[32]Paragraph 182
97 This issue was also considered by Judge Cosgrave in Laming where his Honour referred to the following authorities regarding the knowledge of the proprietor of the servient tenement of the use of the land as being one of the essential elements underlining the loss modern grant doctrine.
“213Halsbury’s Laws of Australia provides:
No prescriptive right can be acquired from activity on the servient tenement which the owner contests and endeavours to interrupt or of which the servient owner has no knowledge, actual or constructive: Sturges v Bridgman (1879) 11 Ch D 852; Hough v Taylor (1927) 29 WALR 97.
214In Hough v Taylor, McMillan CJ held:
(T)he defendant’s predecessor in title in any event had had a reasonable opportunity of becoming aware of the enjoyment by the plaintiff of a right over his land and for that reason the enjoyment of the right of way could not be alleged to be secret (…) The plaintiff had established his right to the way and was entitled to a declaration accordingly and an injunction against interference with his right.
215His Honour said further:
It was contended on behalf of the defendant that there was not sufficient knowledge on the part of Dempster, who was originally the owner, and who it was suggested was ignorant of the purpose for which it was being used, but as stated in paragraph 524 of Halsbury, ‘Actual ignorance of the exercise or enjoyment of the alleged right will not in every case prevent the enjoyment from being as of right. There are some things which every man ought to be presumed to know. Very slight circumstances may put the servient owner upon inquiry, and if he neglects to make inquiry it may be that knowledge must be imputed to him. Where an ordinary owner of land, diligent in the protection of his interests, would have a reasonable opportunity of becoming aware of the enjoyment by another person of a right over his land, he cannot allege that it was secret. If, however, the enjoyment be fraudulent or surreptitious it cannot support a prescriptive claim.’ (…)
It is clear if Dempster had at any time gone on to his own land he must have seen the road in question, which had been there as a track for a great many years, for more than the 20 years with which I am most concerned, and for the purpose of enabling this road to get through the fence that he was putting up in 1893, Mr. Johnston made a gateway of which we have heard so much.
216In the more recent New South Wales case of Fernance v Simpson, Windeyer J cited Romer LJ in Union Lighterage Co v London Graving Dock Co, who said:
Now, on principle, it appears to me that a prescriptive right to an easement over a man’s land should only be acquired when the enjoyment has been open – that is to say, of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment. And I think on the balance of authority that this principle has been recognised as the law, and ought to be followed by us.
217Applying the principles to the facts in question in that case, Windeyer J found:
There can be no doubt whatsoever as to the means of knowledge as the fact that the lane was being used as an access way by the owners of the three properties in question would and must have been obvious to any reasonable observer.
218A case concerning the question of constructive knowledge is Gangemi v Watson. In that case, the Full Court of the Supreme Court of Western Australia found on appeal that the respondents – the legal owners of the servient tenement – had constructive knowledge of its adverse use. This was found for two key reasons.
219First, although the legal owners did not reside on the land at the relevant time, they ‘technically had possession and therefore a duty to act diligently to protect their interest’. Rejecting the respondent’s claim that, since he was unaware of his ownership of the land, he should be treated as an absentee landlord, the court found:
(The respondent), as the legal and beneficial owner of the laneway had possession of the land in the sense that he alone was entitled to possession, as in the same position as any other owner in possession of his land and was under a duty to act diligently in the protection of his interests.
220Secondly, the court found that the owners had means of knowledge, ‘due to the presence of double gates into the lane and the opportunity to observe use’. Although the respondent most likely did not have actual knowledge, the court found that:
He had means of knowledge of the adverse claims because if he had walked onto his property he would have observed the double gate in the fence around Lot 28. It was much more than a clue to an adverse claim. Furthermore he might have observed adverse use.
221The defendant relied on this case in his closing submissions, citing it as authority for the court’s ability to find constructive knowledge in certain cases. Certainly, some parallels can be drawn with that case and the present dispute. First, both cases concern a servient owner who had both legal and beneficial ownership of the relevant property at the relevant time of the alleged easement. Secondly, in both cases there were physical signs of use on the servient tenement which any passing observer (and any diligent landowner) could notice. Thirdly, although the proprietor of the servient tenement could have seen clear evidence of use if he or she had acted diligently to protect his or her interest in the land and had actually inspected it, the proprietor failed to do this.
222The English case of Diment v NH Foot Ltd introduced a presumption of knowledge in certain cases, which has been considered and applied in several Australian cases. In that case, Sir John Pennycuick VC said that, where long user has been demonstrated – in that case in excess of thirty years – there is a rebuttable presumption that the owner of the servient tenement knew of such user. A key question raised in that case was whether this presumption should apply to an agent of the servient tenement owner; if not, actual knowledge of the agent would have to be shown.
223A recent Victorian authority on the area, Sunshine Retail Investments Pty Ltd v Wulff, deals with the question whether the owner of the servient tenement knew of the alleged easement. In that case, Hedigan J found that Rosuma Pty Ltd, the owner of the servient tenement, did not have actual knowledge of the user of its land as a shortcut by residents of the adjacent cul-de-sac (Woodside Crescent) through to the main street (Mathoura Road). This finding was based on evidence that the directors of Rosuma had no actual knowledge of the users, despite the regular visits made by Mrs Unger, one of the directors, during the relevant period.
224In relation to Mrs Unger’s state of knowledge, Hedigan J stated:
Naturally, because of the concrete apron and concrete paths, there had been no track worn into the pathway to suggest use of it as a cut-through, no wheel tracks, no gates, that is, the sort of indicia that were considered in cases like Gangemi v Watson (supra); Neville v Dale (supra) and Diment v Foot (supra). It seems to me that on the sporadic visits made by Mrs Unger herself, that is, as the director and one of the two moving spirits of Rosuma, it was a reasonable conclusion that the people she saw walking along the pathway were tenants or tenants' guests or on building business. Another way of putting it is that it does not appear that there was much to put Mrs Unger on inquiry as to whether those she saw on the pathway were trespassers. The existence of the opening of the back fence and the apparent attractiveness of the shortcut to Toorak Village was not, in my view, sufficient to fix Rosuma with constructive knowledge of user, if they failed to make any inquiry.
As such, Hedigan J found that on the occasions that the owner, through Mrs Unger, was actually present on the servient tenement, there were no readily discernible signs that an easement was being used. Without further inquiry, the servient owner had no means of knowing whether any passers-by were connected to the tenants, as friends, relatives or guests. For this reason, Hedigan J found that the owners had no actual knowledge of the user.
225The reference to ‘indicia’ of user is significant, as it suggests that their presence may be sufficient to put an owner ‘on inquiry’. Language such as this suggests that there may at times be a certain objectivity with respect to knowledge of user. Where such elements are present, whether permanent or semi-permanent as in the present case, this can be grounds for fixing a servient owner with constructive knowledge.
226Hedigan J then turned to the question of whether the owner might have had constructive knowledge by means of the actual knowledge of an agent. During the relevant time there were two managing agents of the property, who gave evidence that they neither noticed nor became aware of any residents using the property as a shortcut. Citing Diment v NH Foot Ltd as authority, Hedigan J acknowledged that only actual knowledge of an agent can be imputed to its principal.”
98 The principles regarding doctrine of lost modern grant were also referred to by Cavanough J in Thomopoulos v Faulks & Anor (2006) VSC 262. His Honour set out the following passages:
“4. The relevant legal principles were not the subject of any significant dispute between the parties. Both parties were content to rely on the following exposition of the principles by Hedigan J in Sunshine Retail Investments Pty Ltd v Wulff & Ors: ([1999] VSC 415 (28 October 1999) at [75]-[76]).
‘75. There is not much doubt about, nor indeed was there much dispute between the parties, about the general legal principles that must apply for an easement of way to arise pursuant to the doctrine of the lost modern grant. It is conceded by the developer that the doctrine of the lost modern grant applies in the State of Victoria to land registered under the Transfer of Land Act 1958. See Nelson v Hughes 1947 VLR 227. It was accepted that there must be established uninterrupted enjoyment of the right-of-way for in excess of 20 years ‘as of right’. The use or enjoyment of the right-of-way must be, as generations of law students were taught, ‘nec vi, nec clam, nec precario’, that is without force, without secrecy and without permission. See Megarry and Wade Law of Real Property, 5th ed. at 870, citing the authorities in support of that precept. However, it is just as much part of the necessary state of satisfaction of the Court that acquiescence by the servient owner in the use of the land must be established, that is, the claimants must not only prove their user but raise circumstances which show that the servient owner acquiesced in that user. I have expressed that language neutrally because there is a dispute between the parties, that is between the claimant and the servient owner, as to who has the burden of proof of these matters.
76. The five elements of which the Court must be satisfied, either by direct evidence or by inference, do not seem to be in dispute in this case either, a matter which does not surprise as the principles have been pronounced in countless cases from Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 786. The elements of which the Court must be satisfied are the following:
(1)the doing of an act by a person or persons upon the land of another;
(2)the absence of right to do that act in the person doing it;
(3)the knowledge of the person affected by it that the act is done;
(4)the power of the person affected by the act to prevent it, either by an act on his own part or by action in the courts;
(5)the abstinence by that person from interference of such a length of time which renders it reasonable for the Court to say that it shall not afterwards interfere to stop the act being done.
See Dalton v Angus at 774 and 786.”
99 The case put by Ms Butler is that an easement was created from 1963 to at least 1983. Having found in favour of the Dicksons in respect of the adverse possession claim, the claim for an easement by Ms Butler falls away as was conceded by her counsel. But if I am wrong on the adverse possession claim, I make the following findings regarding Ms Butler’s easement claim.
100 The easement must be for a continuous period of 20 years. It must be known by the servient owner, here the Dicksons or their predecessors, that the dominant owner, Ms Butler or her father before her, has used the land in such a way for 20 continuous years with the former’s knowledge and acquiescence.
101 Again assuming all the visits claimed by Ms Butler occurred, the visits by her father and her family were still infrequent. Prior to 1977, they averaged about once every two years; post-1977 the visits averaged once every three years at its highest and as low as once every four and half years.[33] There is no evidence that Mr Thompson or Ms Butler used the garage except once to remove furniture items in 1979 or the early 1980s.[34] It was conceded by Ms Butler that neither she nor her father had used the garage for storage. On a few occasions, they drove up the driveway over the Dicksons’ land. Given this, I find that Mr Thompson or Ms Butler did not engage in acts which amounted to continuous use over 20 years, even accepting that use of a bush block such as Lot 6 would not need to be as frequent as other types of land.
[33]T1098
[34]T438
102 From 1963 to 1977, Lots 3, 4 and 5 were owned by Mr Thompson’s uncles. If the subservient tenement gives permission, then an easement will not arise.[35] It can be assumed that to the extent there were visits in this period, these occurred with the knowledge and consent of Mr Thompson’s uncles. Ms Butler gave her evidence about her father visiting Mr Stubbs and sleeping on his couch on one occasion in 1973. The next owner was Ms Pengelley from 1977 to 1987. She assumed wrongly that she owned Lot 6 as well as Lots 3, 4 and 5. She never saw Mr Thompson at all. Consequently, she had had no actual knowledge of any use by Mr Thompson such that an easement could arise during her period of ownership. There is no evidence to suggest she could or ought to have had constructive knowledge of use by Mr Thompson. She used the garage as an art studio.
[35]Abbatangelo v Whittlesea City Council [2007] VSC 529, [42]
103 There were three owners after Ms Pengelley before Mrs Dickson became the registered proprietor of the Dicksons’ land in 1992. There is no evidence at all before the court as to the knowledge of those owners during the period between 1987 and 1992 as to any use by Mr Thompson. As knowledge of the subservient owner is an essential element to create an easement under the doctrine of lost modern grant, this has not been proved in respect of this period.
104 The Dicksons never saw Mr Thompson or indeed Ms Butler until the latter’s visit in 2013. Ms Butler did not give evidence that her father ever met with the Dicksons. That being so, there was simply no actual knowledge on the part of the Dicksons of any use by Mr Thompson. There is no evidence to suggest the Dicksons ought to have been on notice the land was being used by someone else, such that it could be said they had constructive knowledge. For example, finding items stored in the garage or some other evidence of someone entering and using Lot 6. In the absence of knowledge, whether it be actual or constructive, there can be no acquiescence. Consequently, this is sufficient to dispose of the plaintiff’s claim for an easement under the doctrine of lost modern grant.
Conclusion
105 In summary, I have found:
(a)the Dicksons have established their claim of title by adverse possession to the whole of Lot 6;
(b)the Dicksons’ alternative claims over Lot 6 do not fall to be considered because of the adverse possession finding;
(c)Ms Butler’s title to Lot 6 is extinguished pursuant to section 18 of the Limitations of Actions Act 1958;
(d)Ms Butler is not entitled to an easement under the doctrine of lost modern grant over the Dicksons’ land;
(e)the Dicksons have not committed a nuisance on Lot 6 given the finding of adverse possession in their favour.
106 I will hear the parties on the form of final orders and costs.
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Certificate
I certify that these 38 pages are a true copy of the Reasons for Judgment of Her Honour Judge A Ryan delivered on 10 May 2018.
Dated: 10 May 2018
Stephen Cremean
Associate to Her Honour Judge A Ryan
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