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. / 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.
| Identifer | oai:union.ndltd.org:ADTP/245645 |
| Creators | Park, M. M. |
| Source Sets | Australiasian Digital Theses Program |
| Language | English |
| Detected Language | English |
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