I proceeded a claim to Consumer Affairs on an adverse possession for a property i had a contract on that was looking at taking over 12 months to settle on.
I rescinded the contract and bought else where because the vendor could not provide clear title. The Real Estate Institute suggested take the Agent to VCAT in order for the Judge to request the funds from the Vendor for not providing a clear title in the Vendors Statement 32. I walked in off the street to buy a property and was charged $1200 and won't give my deposit back. Then request the vendor pay the $1200 conveyancing fee bill i received.
My renovation and resale value for other properties in the area came in at a profit of 40k on paper perhaps in the real world it might have been 30k-40k. That's doing the numbers with thorough feasibility which i can provide all the evidence down on paper. Could i sue based on what i lost or could have made?
The whole ordeal evolved when the bank had sent a registered valuer general out to the property and discovered that indeed i was buying two blocks side by side with two houses on it when the measurements on title should have been half that. So it was an adverse possession claim. But i did not want to claim the neighbours but just buy the proper house that should have been on title.
I negotiated over 3 months when first showing interest in this property listed at $110k then signed on contracts at 65k about June 08 last year. After 12 months and sick to the death it all and after rescinding the contract after about 8 months. I attended the auction and watched it sell for 78k June 28/09. Renovated houses similar in the area with what i was going to do with it would reach 130-140 easy. 15-20k spent tops.
REI said a $200 deposit is a $200 deposit and you are entitled to get that back as well.
What's your guess on what will happen in VCAT and should i move to get it processed before the settlement date of this new purchaser. The title is still in process and not cleared. The new purchaser is not going to be able to settle either!
Sorry Jaffa, I can't understand what you are saying.
Adverse possession is when someone occupies land they don't own. If they have done this for a minimum period of time and certain conditions are met, they can then make a claim for ownership. In NSW i think the minimum period is 10 (or 12?) years.
Maybe you are saying you placed a deposit on a property which had someone living on it without the owners knowledge? You placed a deposit and couldn't settle because of this and they will not give the deposit back???
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
No it's a title problem. One number on the title is incorrect!
Looking at the property from standing on the street a measurement is taken from the left corner to the right corner. Instead that number on the title measured spanning across including the next doors property. Because the title was not updated years ago when the block was larger and not yet sub-divided. Two digits caused a big problem.
You are right Terry. Consumer Affair made a call to me today and said that it was not Adverse Possession as he first explained but that he wasn't sure what it was but just a title error.
The agent said the deposit was in the trust account and that he didn't know my address. Yeah right is that why I've seen him five times and asked him about it including his wife and at the auction as well as him physically knocking on my door to track down a sale when i gave the offer to buy it and received letters sent from them previously.
Anyway $200 cheque in the mail and a big learning experience. Thanks for your help. This would actually be a good problem deppendant on what situation you are in. If you want a good long settlement!!
Slightly off the point, but to the best of my knowledge, adverse possession does not exist in Australia any more.
Cheers
K
I am sorry but adverse possession exists. There might not be many instances of it publicly, but it still exists.
It's a horrible term. Could you think of a better way to describe it that seems more relative to these times?
I heard of a case in the news, i think, where residents of a suburb in North Sydney had 'claimed' the old lane way behind their houses. They have fenced it in and council did nothing about it so they made a claim for title based on adverse possession – after holding it for the required time.
And, I have a copy of a Ph.D. thesis by someone on this topic. I could post the details if anyone is interested.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
That'd make for an interesting read Terry.
Malcolm McKenzie PARK
2003, "The effect of adverse possession on part of a registered title land parcel."
Ph.D. Department of Geomatics, The University of MelbourneYou can download it from here: http://www.sli.unimelb.edu.au/research/publications/MMP_PhD.pdf
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
And here is the Abstract
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.Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
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