In New South Wales s27 of the Limitation Act 1969 (NSW) provides for a claim of adverse Possession – colloquially known as ‘squatters’ rights’ – allowing someone to legally take ownership of land they have occupied exclusively for at least 12 years

The claim must be sufficient to extinguish the legal owner’s title — and must be

“open, not secret; peaceful, not by force; and adverse, not by consent of the true owner”.

Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475 per Bowen CJ.

The Plaintiffs

Australian Retirement Holdings Pty Ltd (”the plaintiff”) is the latest proprietor of a retirement village on land at Gilead having occupied land situated at 72 Glendower Street, since 4 November 2013 although construction commenced on the land in 2006.

The plaintiff sought to establish that it and its predecessors in title exercised exclusive possession over the land for a continuous period of 12 years and that the acts that constituted possession of the land were done to enjoy that possession.

The plaintiff’s submitted that since 2013, it had cleared vegetation and weeds, obtained approval from the local council to construct roads for construction access, and located skip bins for the household waste of residents of the retirement village on the land. Additionally, an entrance gate was constructed which the plaintiffs kept locked unless construction was taking place. In 2019, the plaintiff’s hired a security company to patrol the road and property.

In 2019, Tracey Higgins (the first defendant) became aware that the land remained in the name of Arthur and Monica Pritchard; She sent a letter requesting the plaintiffs cease and desist using the land. After receiving no response, she affixed a sign on the property stating “Private. Keep Out.” with details of her lawyer. The plaintiff responded by commencing legal action claiming Adverse Possession.

The defendants

The first defendant is the administrator of the Estate of her grandmother, Monica Pritchard. Monica and her husband, Arthur, who predeceased her, are recorded as the registered owners of the land which shares a border with the land owned by the plaintiff.

Arthur died in February 1990, and Monica died in April 1993. At the date of her death, Monica was the legal owner of the land which was bequeathed to her son, James, and the first defendant.

James was named executor, but died without fully administering Monica’s estate; including the transmission of title to him as legal personal representative of the estate to distribute it under Monica’s will.

Where a sole executor dies before completing administration, the executor’s executor will become the executor of the original estate and the second estate. This common law position is called the “chain of representation” and goes back over several centuries. Following James death, his wife inherited his estate which included his interest in the land.

The first defendant obtained a grant of letters of administration of the deceased’s estate in April 2020. Subject to the validity of the plaintiffs claim the first defendant is entitled to the transmission of the land as registered proprietor as the administrator of the estate of her grandmother.

The plaintiff’s evidence of exclusive possession was disputed by several members of the local community. The land had been in frequent use for recreational purposes with the residents unable to recall a gate being in place, or if it was, it had remained open; aside from the gate, the boundary fences were in poor repair or, non-existent. Additionally, there was evidence of established trails on the land.

The decision

The Court held that due to the sporadic nature of the development’s construction and proof of a different road being used for access in earlier years the plaintiff’s had failed to demonstrate that it and its predecessors had exercised adverse possession for the required 12-year period ordering the plaintiff to pay the defendants legal costs.

Importantly the court stipulated that the plaintiff was not required to relinquish possession until it applies for an order granting easements over the land enabling it to complete construction, and for any other potential purposes related to the safety of the retirement villages residents.

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