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By Gillian Kirwan & Paul Carroll
Carroll & O'Dea Lawyers
Sydney, Australia

Background

Braye v Tarnawksyj [2019] NSWCC 277

The claimed land was situated between Dr Braye’s property at number 7 and Mr Ward’s (Second Defendant) property at number 5 (which was acquired in 2015). The claimed land was owned by a registered proprietor who died in 1906.  Ms Tarnawskyj (First Defendant) is the administrator of the estate.

Dr Braye acquired number 7 in 1986. However, Dr Braye passed away in 2018 and his wife is the representative of his estate in these proceedings (“Plaintiff”).

An issue arose, when Mr Ward in May 2017, approached Ms Tarnawskyj to purchase the claimed land for $50,000. The Plaintiff brought these proceedings claiming possessory title over the claimed land.  If they have possessory title, the land belongs to them and Mr Ward will not be able to buy it.

The following was the Plaintiff’s claimed use of the claimed land:

  • they parked cars, stored goods and maintained the garden;
  • concreted and later pebblecreated the surface;
  • installed and used the pipes beneath the surface;
  • paid the water rates (which were included in the one account with number 7 by the Water Board);
  • they had always leased out number 7 which included the claimed land as “off street parking” for his tenant’s use;
  • one of the Plaintiff’s tenants, who lived there for over 20 years, killed the weeds, hosed the paved surfaces and pruned the palm tree. The tenant also used the claimed land to park his car and his camper trailer (which was left there for lengthy periods of time). This tenant was also approached by Mr Ward of number 5, to request his permission to use the claimed land for access to tradesman when they were renovating number 5 (note they did not seek the registered proprietor’s permission).

It should be noted that Council rates were not being charged over the claimed land until August 2016.

Mr Ward’s and Ms Tarnawksyj’s claim was that the Plaintiff’s use of the claimed land was covered under the right of way granted to the owner of number 7.

Principles

The Plaintiff contends that the claimed land, or at least a substantial portion of it, has been possessed adversely to the registered proprietor, for many years, such that the limitation period of 12 years for an action to recover the land has expired, in other words, title held by the registered proprietor has been extinguished.  The various facts stated above by the Plaintiff are relied upon in support of the adverse possession claim.

In Powell v McFarlane (1979) 38 P&CR 452 [at 470 to 472], it was noted:

  • the owner of the land with paper title is deemed to be in possession of the land;
  • 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 factual possession and the requisite intention to possess (“animus possidendi”);
  • factual possession signifies an appropriate degree of physical control;
  • the alleged possessor must show it has been dealing with the land in question as an occupying owner might have expected to deal with it and that no one else has done so;
  • requisite intention to possess and made such intention clear to the world.

In Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 454 [at 475], Bowen CJ in Eq stated “possession which will cause time to run under the Act is possession which is open, not secret, peaceful, not by force and adverse, not by consent of the true owner”.

Based on the above, Darke J stated that it should be noted that number 7 had a right of way over the claimed land.  The exercise of this right would not support an adverse possession claim.  The Plaintiff contends however, that the acts it relied upon were not authorised by the right of way i.e. only the right to pass and repass.

In Laris v Lin (No2) (2016) 18 BPR 35; 917 [2016] NSWSC 560 [at 118], Slattery J stated “a right of carriageway which authorises passing and re-passing to and from the dominant property does not authorise parking on the site of the easement …”.

Finding

The title owner of the claimed land had not had any relevant dealings or contact with the claimed land until recently.

The Plaintiff has established a possessory title in respect of part of the claimed land.  The Plaintiff has established the existence of factual possession and an intention to possess for a period of at least 12 years over all of the claimed land save for the part that falls within what may be described as the concrete pathway used by Mr Ward in Number 5.  The activities of the owners and tenants of number 7 were not authorised by the terms of the right of way and could not be said to fall within the scope of any ancillary rights conferred by the easement.

The acts of possession described above showed a sufficient degree of exclusive physical control over those parts of the claimed land to warrant the conclusion that the Plaintiff was in factual possession of those parts.

What to take away from this case?

It’s clear from the above that when you are an owner of property you must ensure you have regular contact with the property even just for maintenance purposes and where easements are concerned ensure those easements are being used for the stated purposes.

Gillian Kirwan
Lawyer

Paul Carroll
Partner