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The Effect of Adverse Possession on Part of A 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. i 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. ii 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 iii 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. v vi Contents Abstract i Declaration iii Acknowledgments v Contents vii Abbreviations xi Table of Cases xv Table of Statutes xx Chapter 1 - Introduction 1 1.1 Introduction 1.2 Statement of the research problem and hypothesis: the significance of the research and extent of the problem 1.3 The objectives of the research 1.4 The scope of the research 1.5 Summary of research methodology 1.5.1 Literature review 1.5.2 Formulation of the proposed model 1.5.3 Analysis of the proposed model 1.6 The procedure and organisation of this thesis including an outline 1.7 Summary Chapter 2 - Land Markets 30 2.1 Introduction 2.2 Characteristics of the land markets 2.3 Features of the land market of particular relevance to boundaries 2.3.1 The right to exclude 2.3.2 Economic efficiency of private property rights 2.3.3 The right to alienate property rights 2.3.4 The right to subdivide 2.3.5 Acquisition of information and decision-making based upon acquired information 2.4 The rule of law 2.5 Evolution of the current land market 2.6 Summary Chapter 3 - Boundaries 40 3.1 Introduction 3.2 Definition of boundary 3.2.1 Fixed boundary 3.2.2 General boundary vii 3.3 The modern cadastre 3.4 Boundary variation 3.5 Overcoming boundary variation 3.5.1 Adverse possession — occupation prevails 3.5.2 Reliance upon survey by the purchaser — the certificate prevails 3.5.3 Statutory alternatives — encroachment, presumptions, and rectification by the Registrar 3.6 Summary Chapter 4 - Adverse possession 60 4.1 Introduction 4.2 A statute of repose 4.3 History including the modern law of limitations dating from 1833 4.4 Limitation and prescription 4.5 Inchoate adverse possession 4.5.1 Adverse possession not recognised in the jurisdiction 4.5.2 Period of adverse possession insufficient to invoke the defence where adverse possession is recognised 4.5.3 Uncompleted perfection of adverse possession not recognised in the jurisdiction 4.6 Relativity of title 4.7 The state of mind of the adverse occupier 4.8 Part parcel adverse possession 4.9 Comparison of part parcel and whole parcel adverse possession 4.10 Alternatives to part parcel adverse possession 4.11 Conclusion 4.12 Summary Chapter 5 - Registration of land title 89 5.1 Introduction 5.2 Registered title land 5.2.1 Is there a non-Torrens flavour of registered title land ? 5.2.2 Should there be two flavours of registered title land ? 5.2.3 Allodialism 5.2.4 Characteristics of registered title land 5.2.5 Completeness of the register 5.2.6 Relativity of title 5.2.7 Overriding interests
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