The principle of indefeasibility (the State guarantee as to ownership of land) applies only to Torrens title land. Ownership of Old System title is certain only if another person with a better claim cannot be established. The Common Law has always regarded the possession or occupation of a parcel of land as sufficient evidence of ownership. Consequently, a trespasser (or adverse occupier) who has been allowed unmolested and uninterrupted possession of a parcel will, in time, displace the documentary owner and bar his/her rights to recover the land.
The quality of possession is a matter for the Courts, but a general concept is that the activity must be sufficient to establish the occupier as owner in the eyes of the neighbourhood. It should be such that the dispossessed owner could readily assess, in passing, that he was being displaced in title.
An applicant for a title on the grounds of possession must necessarily support his claim by a plan of survey to establish the area of enclosure, and by statutory declarations from several uninterested persons testifying to the extent and nature of the occupancy relied on. He should also demonstrate who, but for his possession, would be entitled to the land, and this is taken to require the lodgment of a schedule setting out a search of the documentary title.
Possession against the Crown
To be successful the Limitations Act 1969 provides that adverse possession must be proved for a period of 30 years against the Crown commencing from 1 January 1970. Where the possession commenced prior to 1 January 1970 a period of possession of at least 60 years must be shown.
No claim for adverse possession against the Crown can be made in cases of land:
- set out as road under any Act
- left between Crown Grants for use as road or driftway
- dedicated under any Act for a public purpose
- reserved in any Crown Grant, or
- comprised in an uncompleted conditional Crown purchase or other subsisting tenure.
Possession against private ownership
The Limitations Act 1969 provides that a claim of adverse possession may be made against a Common Law owner after a period of 12 years. This however relates to adverse possession commencing after 1 January 1970 and does not apply to any applicant before 1982 where a period of 20 years is required.
The effect of adverse possession is to destroy the title of the person who is dispossessed, however, it does not destroy the rights of other persons who have an enforceable interest in the land such as easements or restrictive covenants.