McGrane v Lot D Preservation Group Inc
[2021] VCC 509
•4 May 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-20-02227
| IAN THOMAS MCGRANE | First Plaintiff |
| and | |
| Second Plaintiff | |
| ANTOINETTE JOY MCGRANE | |
| v | |
| LOT D PRESERVATION GROUP INC | First Defendant |
| and | |
| Second Defendant | |
| REGISTRAR OF TITLES |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2021 | |
DATE OF JUDGMENT: | 4 May 2021 | |
CASE MAY BE CITED AS: | McGrane & Anor v Lot D Preservation Group Inc & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 509 | |
REASONS FOR JUDGMENT
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Subject:ADVERSE POSSESSION
Catchwords: Adverse possession – Limitation of Actions Act 1958 (Vic)
Legislation Cited: Limitation of Actions Act 1958 (Vic)
Cases Cited:Whittlesea City Council v Abbatangelo [2009] VSCA 188
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr N Jones | Gauld & Co. Solicitors |
| For the Defendants | No appearance | Banks and Associates |
HIS HONOUR:
Introduction
1This proceeding is an application by the plaintiffs (“the McGranes”) against the first defendant (“LDPG”) for adverse possession of land. The second defendant is not participating in the trial and will abide the order of the court.
Background
2From about 19 March 1987 until about 31 August 2004, John Robert Latcham and Julie Eileen Latcham were the joint registered proprietors of the land described in Certificate of Title Volume 09221 Folio 475, being the land contained in Lot 1 on Plan of Title 167312J ( “the plaintiffs’ land”). The McGranes became the registered proprietors of the plaintiffs’ land on 31 August 2004.
3LDPG is the registered proprietor of the land more particularly described in Certificate of Title Volume 10549 Folio 623, being the land contained in Lot 1 on Plan of Title 740621A (“the first defendant’s land”). This is the property located at 22 Ravenscourt Crescent, Mount Eliza.
4In an affidavit filed in the proceeding, John Latcham swore that he and his late wife became joint proprietors of the plaintiffs’ land in March 1987 pursuant to a transfer dated 5 March 1987. From that time, until they sold the property to the McGranes, the Latchams lived in a house on the property. Mr Latcham referred to a survey plan (a copy of which is attached as Annexure 1 to this judgment) and said that the land marked “A” (“Lot A”) on that plan was enclosed by timber paling fences along the northern and southern boundaries. The western boundary was also enclosed, partly by a brick garage, and partly by a timber paling fence.
5As a result of an application I heard in relation to this proceeding, I believe that this property at the rear of the plaintiffs’ land and to the west side of Lot A is the property at 37 Roehampton Crescent, Mount Eliza, the registered proprietor of which is Ms Daisy Bartosy.
6Mr Latcham said that the location of the brick garage and the paling fence on the western side of Lot A were accurately shown in the survey plan. He said that there was no fence of any description between the boundary created by the brick garage and paling fence and the entry to the plaintiffs’ land on Canadian Bay Road.
7In about September 2019, the McGranes engaged John Kenter, a licensed surveyor and the survey manager at Speedie Development Consultants Pty Ltd (surveyors, engineers, planners and development consultants) of Marine Parade, Hastings to undertake a survey of the property at 84 Canadian Bay Road, Mount Eliza, including the land at the rear of the property. This additional land, Lot A, comprising 154 square metres, is the land marked “A” on the survey plan dated 25 September 2019 attached as Annexure 1.
8The plaintiffs’ land and the first defendant’s land abut each other and share a common boundary. The first defendant’s land is immediately to the west of the western boundary of the plaintiffs’ land. As noted previously, Lot A on the survey plan has been fenced on three sides since at least 1987. The position has altered recently because the paling fence between the first defendant’s land and Ms Bartosy’s land deteriorated to the point where it collapsed and fell over earlier this month. Because Lot A has been fenced on its boundaries, save for that part of its eastern perimeter abutting the plaintiffs’ land, it has been effectively incorporated into the plaintiffs’ land and formed part of the plaintiffs’ garden.
9Mr Latcham said that throughout the whole of the time that he and his wife occupied the plaintiffs’ land:
(a) the only way to access Lot A was through the plaintiffs’ land, namely through the entrance on Canadian Bay Road;
(b) the fencing was always in place on the northern, western and southern boundaries of Lot A;
(c) the only persons to use Lot A were Mr and Mrs Latcham and other persons whom they invited onto their property; and
(d) Mr and Mrs Latcham used Lot A as part of their garden. They constructed two steel sheds on the land.
10Mr Latcham also commented that, during their occupation of Lot A, he and his wife received communications from LDPG asking them to move the existing boundary fence with Ms Bartosy’s property to the title boundary of the plaintiff’s land. Mr Latcham said that he and his wife ignored these communications and simply did not respond to them. He said that this reflected the fact that they never acknowledged that any third party owned or had any interest in the land comprising Lot A.
11The McGranes bought the plaintiffs’ land from Mr and Mrs Latcham in August 2004 and have lived there continuously since. The property is their principal place of residence. Like Mr and Mrs Latcham, the McGranes used the land in Lot A as part of their garden including the two sheds. When the McGranes took possession of the property at 84 Canadian Bay Road from the Latchams, it included not only the land in Certificate of Title Volume 09221 Folio 472 but also the land in Lot A. Since 2004, the fences on the northern, southern and western sides of Lot A have remained in the same position – at least until the western paling fence collapsed earlier this month. During their ownership of the land, the McGranes have treated the whole of the plaintiffs’ land and Lot A as the one property. The only means of access to Lot A remains through the entrance to the plaintiffs’ land on Canadian Bay Road.
Legal principles
12The applicable principles for adverse possessions claims are conveniently set out in the judgment of the Victorian Court of Appeal in Whittlesea City Council v Abbatangelo[1] where Ashley and Redlich JJA and Kyrou AJA said:
[1][2009] VSCA 188.
“[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. 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.
•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 L.T. 168, 1609: ‘Enclosure is the strongest possible evidence of adverse possession’. Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487, 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, 20 P. & C.R. 633, 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. Whilst 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 whilst 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 v Jack. 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 J A Pye (Oxford) Ltd v Graham, where Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh v Jack:
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)Whilst 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.”
Consideration
13In the present case, I consider that the McGranes have assumed possession in fact of Lot A and have displayed the requisite intent to possess that land, thereby entitling them to an order for adverse possession. In reaching this conclusion I have taken account of the following factors.
14The Latchams and then the McGranes took physical control of the land in Lot A and have taken exclusive possession of that land. They have incorporated Lot A into the plaintiffs’ land and dealt with Lot A in just the manner one might expect from an occupying owner.
15Both the Latchams and the McGranes displayed the requisite animus possidendi by intending to assert ownership over Lot A against all third parties including LDPG as the owner of the paper title to that land. The Latchams and the McGranes excluded all third parties from accessing Lot A and exercised exclusive control over that land. When contacted by LDPG about the location of the boundary fence, the Latchams ignored the request to change the status quo.
16The Latchams and McGranes enclosed the land in Lot A. This is important because enclosing land is prima facie an indicator of the animus possidendi. It is cogent evidence that the registered proprietor of the land has been dispossessed and excluded from the subject land.
17There has been no gap in the possession of Lot A by the Latchams or the McGranes since 1987.
18Assuming LDPG had the paper title to Lot A, it is no longer able to bring a proceeding to recover the land from the McGranes. Section 8 of the Limitation of Actions Act 1958 (Vic) provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued to the person or, if it first accrued to some other person through whom that person claims, to that person.
19Here, the right of action accrued no later than March 1987 when the Latchams took possession of the plaintiffs’ land and Lot A. More than 15 years has elapsed since then, so LDPG now faces a statutory prohibition.
20Even if, which I do not find, time only began to run from August 2004 when the McGranes became registered proprietors of the plaintiffs’ land and assumed control and possession over Lot A, more than 15 years has passed.
21The prohibition which LDPG faces in bringing a proceeding to recover the land is emphasised by section 18 of the Limitation of Actions Act 1958. This relevantly provides that, at the expiration of the period prescribed by that Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished. This provision makes clear that the effluxion of time since the accrual of LDPG’s cause of action results in the title which LDPG formerly held to Lot A being extinguished.
Conclusion
22In the circumstances, I am satisfied that the plaintiffs have established adverse possession in respect of the land in Lot A and that any paper title which LDPG had to that land has been extinguished.
23I will make orders and declarations to the effect that:
(a) Ian Thomas McGrane and Antoinette Joy McGrane have established that they have adversely possessed the land marked “A” in the annexed survey plan and are entitled to be registered as proprietors and joint tenants of that land.
(b) By reason of section 18 of the Limitation of Actions Act1958 the registered title of the first defendant to the land marked “A” on the survey plan attached to these orders has been extinguished and was extinguished on 19 March 2002.
(c) Reserve liberty to the parties to apply by email to the Commercial Registry ([email protected]) for further directions upon giving reasonable notice to all other parties.
(d) There be no order as to costs.
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