Acquiring title by adverse possession

The recent case of Braye v Tarnawskyj [2019] NSWSC 277 demonstrates the potential of a party to become the owner of land by adverse possession. In NSW one is able to become the owner of land by ‘adverse possession’ in situations where they have exerted control over the land for a period of 12 years or more. A person is not entitled to obtain a possessory title over land unless the occupation is adverse to that of the registered owner. The case involved Dr Braye (plaintiff) who occupied property number 7, Mr Ward (second defendant) who occupied property number 5, and Ms Tarnawskyj(first defendant) who was the registered owner of a block of land that was situated between number 7 and number 5. When Mr Ward approached Ms Tarnawskyj offering to purchase the land for $50,000, Dr Braye brought proceedings claiming to have possessory title over the land. The plaintiff claimed that for a period of over 12 years they had parked cars, stored goods, maintained the garden concreted and later pebble created the surface, installed and used the pipes beneath the surface and paid the water rates. Both defendants claimed that the plaintiff’s use of the land was covered due to the right of way that was granted to the owner of number 7. The Court ruled that due to the fact that the registered owner of the title had not had any relevant dealings with the claimed land until very recently, the plaintiff was entitled to obtain possessory title, however only in respect to part of the claimed land. The court decided that the concrete pathway that ran through the block, could not be claimed as it had been regularly used by Mr Ward from number 5 to gain access to his property. This case demonstrates that owners of property must maintain regular contact with the property and ensure that easements are used for their intended purpose, in order to avoid situations such as these from occurring.

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