The effect of adverse possession on part of a registered title land parcel

315 Pages·2003·0.75 MB·English

The effect of adverse possession
on part
of a registered title land parcel
Copyright © 2003 Malcolm McKenzie PARK
The effect of adverse possession
on part
of a registered title land parcel
Malcolm McKenzie PARK
Submitted in total fulfilment of the requirements
of the degree of Doctor of Philosophy
January 2003
Department of Geomatics
The University of Melbourne
… that it is a system of title by registration, not a system
of registration of title
Breskvar v Wall (1971),
p 385 per Barwick CJ
It is registration that gives or extinguishes title
Lutz v Kawa (1980),
pp 24–25 per Laycraft JA
… the fact of registration and registration alone that
confers title. This is entirely in accordance with the
fundamental principle of a conclusive register which
underpins the Bill.
Law Commission and Her Majesty’s Land Registry,
Land registration for the Twenty-first century:
a conveyancing revolution (2001),
page 4, ¶ 1.10
Abstract
This thesis began as an investigation of the effect of adverse possession upon the
land market where the adverse possession extends only to a small portion of the
abutting parcel and the subject land is under a title registration scheme. The
consequence of such adverse possession on part only of a parcel is that the location
of the boundary demarcating the limits of the respective domains of two adjoining
land parcels may be displaced.
If part parcel adverse possession effectively transfers ownership of a small portion of
an abutting parcel, the boundaries are shifted consequent to long term occupation,
and will prevail over the strict technical legal boundary. In a registered title land
system the occupational boundary then prevails over the legal boundary as certified
in the register notwithstanding that registered title schemes purport to confer
conclusiveness upon register entries. Alternatively, the registered proprietor’s estate
is not paramount where any part of the proprietor's parcel has been adversely
occupied. Consequently the occupier has an interest in the proprietor's land that is not
disclosed in the register. Inspection of the register and reliance upon the inspection is
insufficient to ascertain the complete legal status of the particular land holding.
Inspection with consequent reliance upon the register is the major function of a
registered title scheme. Alternatively, if part parcel adverse possession is ineffective
to transfer ownership of registered land, the technical legal boundary prevails over
the occupational boundary despite the fact that it is not the boundary accepted by the
parties involved as governing.
Both alternatives present a problem to the orderly conduct of the land market. Where
occupations prevail, the prudent market participant takes precautions besides relying
on inspection of the register. Where the legal boundary prevails, the participant seeks
confirmation that the occupational and legal boundaries coincide.
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Another alternative utilised in some registered title jurisdictions empowers a court to
transfer small sections to an adjoining landholder where a building or similar
improvement is erected so that it encroaches upon the adjacent holding. This
alternative was included within the ambit of the thesis as it developed.
The aim of this research was the formulation of the best solution suitable for a
registered land system with particular reference towards a uniform solution suitable
for adoption in all Australian jurisdictions. The existing systems utilising adverse
possession and statutory encroachment were evaluated against three recent law cases
that illustrate the workings of these systems including perceived shortcomings. These
lawsuits serve as a test against which the existing systems are compared and
evaluated and were also used to evaluate the proposed solution. The results suggest
that adverse possession alone should not override the purpose of the register which is
to fully disclose the proprietary interests in land parcels. It was concluded that a
necessary step in acquiring title to land through adverse possession involves the
registration of the interest acquired. Whereas the present modes of dealing with the
boundary problem are adequate, it is concluded that the best mode is that of statutory
encroachment because it best serves several competing interests. Adopting the
proposed solution would involve change and compromise in some of the Australian
jurisdictions; these being necessary to adopt a uniform scheme throughout Australia.
The proposed solution has added benefits of removing an illogicality from some of
the present systems, eliminating encouragement for an off-register land market, and
fosters an accurate public land register.
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Declaration
This is to certify that
(i) the thesis comprises only my original work towards the PhD;
(ii) due acknowledgment has been made in the text to all other materials used;
(iii) the thesis is less than 100,000 words in length, exclusive of tables, maps,
bibliographies, and appendices.
_______________________________
Malcolm McKenzie PARK
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for Mardi
… who held my hand when I was afraid of the dark
Acknowledgments
I wish to thank the large number of persons who have assisted me during the research
and writing of this thesis. In addition to my supervisor, Professor Ian Williamson, I
wish to acknowledge the additional assistance and advice provided by Dr Gary
Hunter and the encouragement of Dr T O Chan. I should also like to record my
appreciation for the assistance provided by Land Victoria and Steve Jacoby and Land
and Property Information NSW and both Don Grant and Paul Harcombe.
I hesitate to name specific individuals who have assisted if only for the reason that an
inadvertent omission may incorrectly detract from the contribution by that unlisted
person: an inadvertent omission may be mistakenly construed as a deliberate snub.
Another practical reason for shying away from listing and acknowledging assistance
from individuals is the length of such a list — those who have assisted are many.
Consequently I acknowledge the assistance of the many who have contributed and
made my task that much easier. However, among the many librarians from many
jurisdictions who have assisted my research I particularly wish to thank Marion Boyd
of the Library of the High Court of Australia who was able to provide assistance and
offer advice with regard to tracking down the most obscure and rare references. It is
also incumbent upon me to acknowledge the assistance and valuable time offered up
to me by the many public servants in the various Australian and international
jurisdictions. Deserving of special mention is Peter Burns (now retired) of Land
Victoria who provided advice, commentary, and valuable insight and much
enthusiasm in an area of law that is not commonly perceived of as generating
excitement and enthusiasm.
Finally I acknowledge the moral guidance provided during my candidature by my
good friend Michael Houlihan although that moral guidance did not extend so far as
to persuade me into joining him in his Lenten temperance.
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