Land Administration Lecture

1
Adverse possession resolving the location
ofdisputed boundaries

• Mal Park

2
Objectives

• What why is adverse possession ?Answer
  dispute resolution
• Resolution of disputes involving the location of
  a boundary. Why should there be disputes given
  todays technical expertise ?Answer past error,
  possibility of future error
• Why is this topic in the Land Administration
  course ?Answer boundaries define the basic unit
  of land administration (a land parcel)

3
Topics

• Dispute resolution - where one parcel ends
  another begins
• Adverse possession is legitimate tool in a
  registeredland system eg Victoria WA
• Adverse possession is not logical and cannot be
  used in a registered land system eg ACT, NT,
  USA, Singapore

4
Topics (continued)

• Adverse possession is legitimate tool in a
  registered land system where registration
  principles are complied with say Alberta.
  Occupier MUST APPLY for AND OBTAIN registration.

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Eye rest !!!
6
Eye rest now over
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tentative conclusions

• Adverse possession is a legitimate tool where
  interest is perfected by registration
• Part parcel adverse possession is a legitimate
  tool where interest is perfected by
  registration
• Because humans are, after all, only human we
  require some mechanism to overcome problems
  created by foibles of human nature
• Most of those jurisdictions that insist on NO
  adverse possession require some mechanism to
  overcome the boundary location problem

8
Encroachment of land

• NSW, NZ, SA, NT do not permit part parceladverse
  possession
• NSW, NZ, SA, NT do permit statutoryencroachment
• Victoria UK do permit part parcel adverse
  possession
• Victoria UK do not permit statutoryencroachment

9
Encroachment of land(contd)

• WA Alberta (Canada) permit both
• Tasmania ACT permit neither
• and Queensland ? - a damn good cup o
  coffee FBI special agent Dale Cooper in Twin
  Peaks
• and Queensland ? - a damn good question with the
  answer depending on the day of the week, the time
  of the day, whether it is raining, whether the
  Lions are playing a home game, the length of the
  Registrars foot, and who killed Laura Palmer ?

10
Encroachment of land(contd)

• Statute law passed by Parliament
• Interference with private property rights
• Attempt to strike a balance between the harm
  associated with permitting unlawful trespass
  vsthe loss suffered by strict application of the
  law
• Judges/courts conferred with wide discretionary
  powers

11
Encroachment of land(contd)

• Judges/courts conferred with discretionary
  powersto consider each case on its merits
• Because compensation may be awarded there is less
  of the winner takes all as in adverse
  possession the loser may derive some solace or
  comfort from monetary compensation - the loss is
  not total
• More flexible - victim of innocent trespass
  cannotgouge the trespasser trespasses can be
  maderegular without waiting 12 or 15 years
  cadastre isupdated immediately

12
http//www.austlii.edu.au/au/cases/tas/supreme_ct
/unrep338.html
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http//www.austlii.edu.au/au/cases/vic/VSC/1998/79
.html (Smith J)
http//www.austlii.edu.au/au/cases/vic/VSCA/2000/1
1.html (Vic Ct of Appeal)
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Exam Question

• Mr Malter now has 2 C/Ts - one for 20
  andanother for the half metre strip that used to
  belong to 22.
• As a land administrator should he be forced to
  consolidate the two titles ?
• As a purchaser from Mr Malter, what would you
  expect to be obtaining when you purchase his
  property ?

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Exam Question (contd)

• As a land administrator do you foresee any
  problems with you updating the land registerin
  2000 to reflect that Malter has been in
  occupation of the strip since December 1972 and
  has owned the strip since December 1987 ?
• Would you be proudly claiming that your register
  was kept up-to-date ?
• What do you mean by the term up-to-date ?