Laming v Jennings

In Laming v Jennings, the Full Court of the Federal Court of Australia considered issues of adverse possession and easements concerning a strip of land adjoining a property. The property was originally owned by Mr Laming and was subject to an easement allowing his neighbour, Mr Jennings, to use a strip of land as a garden or backyard. Mr Jennings took possession of this strip, and later sold his property to Mr Jennings, who continued to use the strip. Mr Laming subsequently sought to recover possession of the strip. The primary judge found that Mr Jennings had adversely possessed the strip and awarded Mr Laming damages for the loss of possession.

The court was required to determine whether Mr Jennings' use of the strip amounted to adverse possession, whether Mr Laming's acknowledgment of Mr Jennings' use precluded adverse possession, and whether Mr Jennings took the servient title free of any right of adverse possession accrued by Mr Jennings. The court was also required to consider whether the doctrine of lost modern grant applied to the easement.

The court held that Mr Jennings' use of the strip amounted to adverse possession as he had intended to possess the land, and his use was continuous and exclusive. The court rejected Mr Laming's argument that his acknowledgment of Mr Jennings' use precluded adverse possession. The court found that Mr Jennings took the servient title free of any right of adverse possession accrued by Mr Jennings, as the adverse possession had not been completed at the time of the transfer. The court also held that the doctrine of lost modern grant applied to the easement, as Mr Jennings had actual or constructive knowledge of the easement, and the owner of the servient tenement had put him on inquiry.

The court ordered that Mr Jennings pay Mr Laming damages for the loss of possession of the strip of land. The court also ordered that the easement be revived, and Mr Jennings be required to remove any structures built on the strip of land.