Re Franklin
[2009] VSC 496
•4 November 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 9329 of 2009
IN THE MATTER of s 60 of the Transfer of Land Act 1958
and
IN THE MATTER of an application for a Declaration under s 36 of the Supreme Court Act 1958
| APPLICATION BY: JOHN EDWARD FRANKLIN | Plaintiff |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2009 | |
DATE OF RULING: | 4 November 2009 | |
CASE MAY BE CITED AS: | Re Franklin | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 496 | |
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REAL PROPERTY – Adverse possession against co-proprietor – Effect of death of joint tenant in whose favour limitation period runs – Application to Registrar of Titles for vesting order – Limitation of Actions Act 1958 (Vic) ss 8, 14(1), (4), 18, 23 – Transfer of Land Act 1958 (Vic) s 60, 62.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Ryan (solicitor) | George Ryan |
HIS HONOUR:
The plaintiff, by originating motion, claims a declaration that the facts disclosed in his application to the Registrar of Titles, lodged on 30 April 2009 for a vesting order under s 60 of the Transfer of Land Act 1958, are sufficient to establish that the applicant has acquired a title to the land described in Certificate of Title volume 3398 folio 435 by adverse possession. That land is situated at 44 Greenhill Avenue, Castlemaine.
The plaintiff is the son and administrator of Edward John Franklin (deceased). He was granted letters of administration of the estate of Mr Franklin on 19 March 2009.
The background facts to the application can be summarised very shortly.
In 1943 the late Mr Franklin married his wife, Winifrede. There were two children of the marriage, namely, the plaintiff and another son Kevin, who has since died. In 1951 Mr Franklin purchased the property at Greenhill Avenue and became registered as the sole proprietor of it. Thereafter, he, his wife and his family lived at the property until about 1958, when Mr Franklin separated from his wife, Winifrede. After the separation, Winifrede Franklin sought maintenance from Mr Franklin. He resisted paying that maintenance and indeed, at one stage, was arrested and taken to prison for his failure to pay that support to his former wife.
On 9 May 1959 Mr Franklin transferred the property at Greenhill Avenue to himself and his sister, Myrtle Franklin, as joint tenants. Accordingly on 9 October 1959, Mr Franklin and Myrtle Franklin became registered proprietors of the property as joint proprietors.
The material which has been put before me establishes that after his separation from his wife and, indeed, after the registration of himself and Myrtle as joint tenants of the property, Mr Franklin remained in possession of the property until his death. Through the whole of that period he treated the property as his own, to do with it as he liked. He paid all the outgoings on it. In 1966 he mortgaged the property for his own business and subsequently repaid that mortgage in about 1972. While occupying it, he stored a large number of items on the property, including building materials, old cars and other paraphernalia, particularly in the two houses located on the property. As a result, at the date of his death, the property and the two houses had become significantly cluttered with the possessions of Mr Franklin.
The other co‑proprietor, Myrtle Franklin, never lived at the property and from the evidence of the witnesses, she was never seen at the property.
The materials, in support of the application under s 60 to the Registrar of Titles, satisfy me that Myrtle Franklin never exercised any rights as co‑owner of the property at all. Myrtle never married. She lived at her parents’ house in Bowden Street, Castlemaine, which she ultimately inherited in 1965, and of which she remained the proprietor until quite recently. She resided at Bowden Street, Castlemaine until 2006 and is now a resident in the Mt Alexander hospital.
The materials also suggest that it is likely that Mr Franklin transferred half his original interest in the property to Myrtle in order to make it difficult for his former wife, Winifrede, to enforce maintenance and other obligations against him. As I stated, he was very reluctant to pay any maintenance at all to his former wife and indeed suffered imprisonment for his failure to do so.
Pausing there, when this matter came before Harper J on 6 October, he gave directions for the service of this application on the co‑proprietor, Myrtle Franklin. I am satisfied that this application has been duly served on Myrtle Franklin and has also come to the attention of Ms Franklin’s guardian, Brian Medbury, with whom the plaintiff’s solicitor has spoken, and to whom he has confirmed that he has received and read the documents. I have received, and placed on the court file, a letter from Mr Medbury’s solicitors advising that he will not be contesting the application.
On 30 April 2009 the plaintiff lodged an application with the Registrar of Titles for a vesting order, based on title by possession under s 60 of the Transfer of Land Act. In support of that application, he filed a statutory declaration made by himself, and five other statutory declarations.
In response, the Registrar of Titles indicated that he was not prepared to make a vesting order. He considered that because a claim for adverse possession against a co‑owner is quite rare, he should not make a vesting order in the absence of a ruling of this court that he should do so.
The Registrar of Titles has indicated that he does not seek to be made a party to this application.
Turning briefly to the legislation, the combined effect of ss 8 and 14(1) of the Limitation of Actions Act 1958 is that the right of action to recover land by a proprietor of land is barred by 15 years’ adverse possession. Section 18 provides that at the expiration of that period, the title of that person is extinguished. Section 60 of the Transfer of Land Act provides that a person, who claims he has acquired a title by adverse possession, may apply to the registrar for an order vesting the land in him for an estate in fee simple or such other estate as he may claim. Section 62 empowers the registrar to make such a vesting order, if he is satisfied that the applicant has acquired title by possession.
It is clear, both by the operation of s 14(4) of the Limitation of Actions Act, and also from authorities in respect of that and similar provisions, that a joint owner may acquire title by adverse possession against other co‑proprietors. I refer to Beaumont v Hochkins[1]. See also Thornton v France[2], and Sanders v Sanders[3].
[1](1889) 15 VLR 442, especially at 448‑9, Hodges J.
[2][1897] 2 QB 142.
[3](1881) 19 Ch D 373.
A recent instance of the effect of that proposition is provided by the decision of the Privy Council in Wills v Wills[4], which was helpfully drawn to my attention by Mr Ryan, who appeared on behalf of the plaintiff.
[4][2004] 1 P&CR 37.
In the present case, the facts in the statutory declarations, lodged with the registrar, establish that during his life‑time, the late Mr Franklin exercised sole rights of possession over the property, and that he did so to the entire exclusion of the co‑owner, Myrtle Franklin. He treated the property as his own. As I stated, he occupied it, paid the expenses in relation to it, and mortgaged it. He stored a very large amount of his own goods on the property. It is clear therefore, that by his death, and indeed well before his death, the title of Myrtle to the property was extinguished, pursuant to s 18 of the Limitation of Actions Act.
One question which did occur to me, is whether the death of Mr Franklin as a joint tenant had, in any way, affected the plaintiff’s claim to title by adverse possession. It is, of course, trite that the late Mr Franklin’s interest as joint registered proprietor did not survive his death. However, his possessory right, as now claimed by the plaintiff as his administrator, was not dependent on, or derivative from, his interest as joint proprietor. It is clear, from a number of authorities, that the late Mr Franklin’s interest, deriving from his adverse possession of the property, survived his death and was capable of passing to the plaintiff as his administrator. See in particular Asher v Whitlock[5]. See also Perry v Clissold[6], Wheeler v Baldwin[7]; Allen v Roughley[8].
[5](1865) LR 1 QB 1 at page 6, Cockburn CJ.
[6][1907] AC 73 at 79.
[7]1934 52 CLR 609 at 632‑3, Dixon J.
[8](1955) 94 CLR 98.
Further, as his administrator, the plaintiff has taken possession of the property. He has thereby derived title to the chattels and personal property stored on the property, and as administrator has continued the adverse possession of the late Mr Franklin. See Willis v Earl Howe[9]; Allen v Roughley[10].
[9][1893] 2 Ch 545 at 553 Kay LJ.
[10]Above, at 131‑2, Fullagar J.
Thus, as the administrator of the estate of the late Mr Franklin, the plaintiff has continued to exercise Mr Franklin’s right of possession to the land.
In those circumstances, I am satisfied that the plaintiff is entitled to claim, as administrator of the estate of the late Mr Franklin, the right to the property by adverse possession.
As I have stated, I am satisfied that the adverse possession has endured for more than the statutory period of 15 years and, indeed, has endured for more than the 30 years referred to in s 23 of the Limitation of Actions Act, as affecting persons under a disability. I am therefore well satisfied that the plaintiff is entitled to the vesting order sought by him under s 62 of the Transfer of Land Act, and for those reasons I shall make the declaration in the form sought in the course of argument before me.