1. Week 3: REAL PROPERTY Title and Native Title
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2. Overview of today’s session
Part I – Native Title
Part II – Adverse possession
Part III – Doctrine of Fixtures + Boundaries
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3. Part I – Native Title Mabo (no.2) (1992) 175 CLR 1
What did this decision do differently
What is Native Title?
So, what’s the source of Native Title?
How does the Native Title Act operate?
Native Title Act 1993 (Cwth)
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4. Native Title Act 1993 – s223 definition of Native Title
Common law rights and interests
             (1)  The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
                     (a)  the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
                     (b)  the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
                     (c)  the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
             (2)  Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
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5. The impact of Mabo in other Common law jurisdictions
Yogaratnam, Jeswynn --- "Asia-Pacific: Mabo: Whistle blowing the State government on native title in Malaysia" [2008] AltLawJl 71; (2008) 33(4) Alternative Law Journal 240
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6. Title and ownership Concept of Title Title hierarchy: Title Possession
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Title and ownership
Concept of Title
Title
Possession
Ownership
Title hierarchy:
Common Law Estate
Adverse Possession
Bare, possessory title

7. Possessory title Possessory Title/Possession as a root of Title
At common law, someone wrongfully dispossessing another obtains a new title but this may be defeated by the person with the better title.
Possession confers a title of its own. This possessory title is ‘as good as the absolute title as against every person except the absolute owner’. Russell v Wilson (1923) 33 CLR 538
Two aspects to possessory title: physical and legal.
Physical control is factual possession
Title that arises following factual possession is the legal, inchoate aspect of possession.
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8. Possessory title
Perry v Clissold [1907] AC 73 Privy Council appeal of HC decision
Plaintiff with Possessory title over that land was compulsorily acquired was entitled to compensation from the crown
Possessory title applicable in Australia
Based on notion that first in time possessor has better claim to land to all others, except proprietary title holder.
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9. Part II – Adverse possession What is Adverse Possession?
Adverse Possession is a statutory defence available against paper title holders who are vested in possession. The defence will arise where the requisite degree of factual possession has occurred for the limitation period and the possessor satisfies the intention test.
‘If the law is to attribute possession of land to a peron who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi): Whittlesea City Council v Abbatangelo [2009] VSCA 188 at [5]
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10. The Nature of Adverse Possession
To establish adverse possession must prove: limitation period; factual possession; intention to possess
Adverse Possession is not enforceable during the period that a title holder does not have the right to possession.
This will include - Future Interests: Remainder and Reversion. Title is vested but possession deferred until a future date.
ELEMENTS REQUIRED: FACTUAL POSSESSION AND INTENTION TO POSSESS
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11. The Nature of Adverse Possession
Adverse possession only applies to land not personal property and not easements (incorporeal rights)
Adverse possession is a defence – it does not result in the positive conferral of title
Adverse possession ‘punishes’ the paper title holder for not asserting ‘ownership’ right of possession within a requisite time frame.
Will not be punished if have title but no possession.
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12. Policy Rationales
Encourages effective management of land and deters inaction
Protects occupational rights
Protects legitimate expectations of occupiers
Prevents ‘endless’ litigation over land
Punishes those who ‘sleep’ on their rights
Problems with adverse possession is that ‘simple neighbourly indulgence may lead to the extinguishment of title, or where the owner did not know or could not know that the limitation period was running’ DK Irving
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13. Rationales of Adverse Possession
Should the law recognise the acquisition of title by adverse possession
- DK Irving (1994) 2 Australian Property Law Journal 17
Pros
Law should discourage property owners from sleeping on their rights
Interminable litigation founded upon stale claims in undesirable
Law should protect against the grave hardship which may ensue if an adverse possessor who has occupied the property for a long period of time is removed
Title by adverse possession reduces the risks associated with conveyancing because defects are cured with time
Recognising title by adverse possession is economically efficient because it encourages the productive use of land
Cons
Undermines the supremacy of the Registry in Torrens System Title
Undermines the certainty of indefeasibility of registered title
Hardships can be counterbalance by owner’s hardship ignorance of the limitation period
Encourages trespass
Stale litigation is merely a question of evidence
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14. Limitation Period
15 years of adverse possession in : Vic and SA. 12 years of adverse possession in all other states and territories. (See for example Limitations of Actions Act 1958 (Vic), s8)
Limitation period will commence when paper title owner is physically dispossessed or where paper title owner has discontinued possession.
No adverse possession against the Crown in Vic, WA and Qld. In NSW and Tas must establish 30 years of occupation.
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15. Against which Owner?
Adverse possession may only be raised against an owner whose title is vested in possession.
It may not be raised against a future interest holder whose possessory entitlements is deferred until a future date eg remainder/reversion (see doctrine of estates – deal with later in the unit)
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16. Against which Owner?
In NSW and SA cannot adversely possess a future interest until it is vested in possession and full limitation period has expired. In other states legislation has reduced the relevant limitation period.
For example: Limitation of Actions Act 1958 (Vic), s10 (2) sets out:
15 years from when time starts running against the preceding interest holder OR
6 years from when interest vests in possession
WHICHEVER IS LONGER
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17. Factual Possession
The adverse possessor must prove requisite degree of control over the claimed area. This assessment will depend upon the individual circumstances of each case. The possession must:
(i) ‘open and peaceful’ – ie without violence and not in a secretive manner
(ii) ‘without consent’ – if the paper title holder has given consent (actual or implied) the possession will constitute a licence and cannot be adverse
(iii) ‘exclusive’
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18. Intention to Possess: Animus Possidendi
Must prove possessor intended to occupy the land to the exclusion of the rest of the world. Intention depends upon an overall examination of the circumstances.
Intention to occupy to the exclusion of the rest of the world is often established by enclosure because in this situation, possessor has prohibited access to the area by others.
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19. Intention to Possess: Case Study: JA Pye (Oxford) Ltd v Graham
Facts: Grahams were in possession of grazing land. Possession was initially pursuant to a grazing licence. Licence expired in 1983 and no new licence granted. Owners asked Grahams to vacate land. They did not do so but rather, remained in possession and grazed cattle, cut hay and carried out other acts associated with the grazing of cattle over the land for the requisite limitation period.
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20. Intention to Possess: Case Study: JA Pye (Oxford) Ltd v Graham
Held: House of Lords held that adverse possession had been established. Grahams did have the requisite intention and they did not have to prove that their use of the land was ‘inconsistent’ with that of the paper title owner. Lord Browne-Wilkinson stated: ‘For all practical purposes the Grahams used the land as their own and in a way normal for an owner to use it throughout the period from August 1984 onwards. During that whole period Pye did nothing on the disputed land from which they were wholly excluded …’
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21. Appeal to the European Court of Appeal: JA Pye (Oxford) v UK
Pye argued that the limitation act violated Art 1 of Protocol 1 of the European Convention of Human Rights and Fundamental Freedoms.
Grand Chamber rejected the appeal: Purpose of act was regulatory not deprivation of ownership; fair balance not upset because the rights acquired proportionate to the circumstances
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22. Intention to Possess: Case Study: Whittlesea City Council v Abbatangelo
Facts: A’s owned land adjacent to vacant land held by Whittlesea City Council. During limitation period, A’s repaired fences, installed a gate, use land for grazing, installed water troughs, maintained vegetation. Council argued A’s lacked requisite intention because they never truly regarded the land as their own.
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23. Intention to Possess: Case Study: Whittlesea City Council v Abbatangelo
Held: Ashley, Redich JJA and Kyrou AJA in the Victorian Supreme Court of Appeal held that A’s had displayed requisite intention. ‘The very fact that a putative adverse possessor lives next to the dispute land means that he or she will be able to put that land to a greater variety of uses, and derive a greater range of benefits, than a person living further away. It may be that the best form of use by a person living next to the disputed land, consistent with treating that land as being in his or her exclusive possession, is to take advantage of its existing physical characteristics insofar as they complement the characteristics of the land upon which he or she is living’
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24. Multiple Possessions
Limitation period may be comprised of a number of different possessions provided the period between each possession is continuous and uninterrupted.
Person in possession when the statutory period expires, after multiple possessions, will acquire adverse possession.
Must be no ‘appreciable gap’ between each possession or ‘abandonment’: Kierford Ridge Pty Ltd v Ward
Question of Fact of possession in limitation period
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25. Suspension/Postponement on the basis of disability/fraud
The limitation period may be suspended or postponed in a number of circumstances:
Disability of paper title owner – In WA, Vic, Qld and Tas can be raised 6 years from cessation of disability. 3 years in NSW
Fraud by possessor: Limitation period will only commence where owner discovers the fraud, or could have discovered it with reasonable diligence
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26. Adverse Possession and the Torrens System
Adverse possession is protected under the Torrens system in different ways. In Vic and WA it is an absolute exception and subsequent registration cannot defeat it. For example, Transfer of Land Act 1958 (Vic), s42(2)(b).
In other states, must establish that limitation period has expired to gain protection. For example, Real Property Act 1900 (NSW), s45D where possessor makes a possessory application once limitation period has expired.
In NT adverse possession only applies in very limited circumstances and generally title by adverse possession is not permitted in NT pursuant to section 198 of the Land Title Act 2000
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27. Part II
Doctrine of Fixtures
Boundaries
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28. What are Fixtures?
Fixtures: “all the circumstances” test. National Australia bank v Blacker (2000)
Fixtures = Goods annexed to land, lose identity as a good and become part of the land.
Holland v Hodgson (1872) LR 7 CP 328
“It is a question that must depend on the circumstances of each case and mainly two circumstances, as indicating the intention, viz the degree of annexation and the object of annexation.” also see Leigh v Taylor [1902] AC 157 at 162; National Australia bank v Blacker (2000) 179 ALR 97 per Conti irrigation equipment resting on own weight held to be chattel.
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29. Fixtures – degree of Annexation
Onus on providing land or chattels depends on prima facie degree of annexation
Where good is not fixed but kept in position by its own weight then prima facie chattel and onus on the person claiming it is a fixture to establish this per Backburn LJ in Holland v Hodgson (1872) LR 7 CP 328
Where the good is fixed to land then prima facie it is a fixture, the onus is on the person claiming that it is not, Australian Provincial Assurance Co Ltd v Corneo (1938) 38 SR (NSW) 7000; Belgrave Nominees v Barlin Scott Airconditioning [1984] VR 947; Loiero (aka Lero) v Adel Sportswear Pty ltd [2012] NSWSC 113;
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30. Fixtures – intent Subject versus objective intention of the affixer
Pegasus Gold Australia Ltd v Mesto Mineral (Australia) Ltd [2003] NTCA 203 Per Mildren J at (Mining equipment affixed to land determined chattel not fixture)
“Although sometimes it is appropriate to take into account the subjective intention of a party fixing a chattel to land, usually the relevant test is to be determined objectively from such facts and circumstances that are apparent for all to see”
Subjective intention is not relevant to the assessment Santow JA in May v Ceedive Pty Ltd [2006] NSWCA 369
The intention…is at least predominantly, ‘the objective intention of the person who brings the object onto the land and affixes it there.
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31. Fixtures – nature of chattel
Nature of the chattel - a tangled web of tapestry?
Leigh v Taylor [1902] AC 157
Tapestry attached securely to wall to be viewed.
“This thing, put up for ornamentation and for the enjoyment of the person while occupying the house, is not under such circumstances as these part of the house.
Cf Re Whaley [1908] 1 Ch 615 a valuable tapestry attached to a wall in order to enhance the historical character of the room and to assist in the creation of a perfect Elizabethan room.
Primary purpose of “creating a beautiful room as a whole and not intended for the mere display and enjoyment of the chattels themselves.”
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32. Fixtures – overall circumstances
Overall circumstances test
Snowy Hydro Ltd v Commissioner of State Revenue [2010] VSC 221 per Davies J “No one test that is conclusive of characterisation”
Other factors include nature of the chattels, status of the affixer, interest of any third parties in the goods, duration that chattel affixed/intended to be affixed, level of any damage that removal have on chattels or land, statutory provisions or contractual terms governing affixation.
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33. Fixtures – Tenants’ Right to Remove
TEC Desert Pty Ltd v Commissioner of State revenue (2010) 273 ALR 134 French CJ, Heydon, Gummow, Crennan and Kiefel JJ confirmed exception know as ‘tenant’s fixtures’ exist but in the claim in question statutory assumption that a ‘mining plant’ is not determined by the general law respecting the affixture of chattels to the freehold Principle: Where a chattel has become affixed during the tenancy, the tenant retains right to remove that chattel. If the right is not exercised, chattel will remain a fixture. When right to remain in legal possession expires, tenant’s right to remove chattel expires new Zealand Government Property Corporation v HM & Sons Ltd [1982] QB 1145
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34. Tenant right to remove cont.
Tenant who remove a fixture must repair any damage caused to lease premises and leave the premises in a reasonable condition Mancetter Developments Ltd v Carmanson [1986] QB 1212
Tenant’s right to remove fixtures is capable of being assigned Poole’s Case [1738] Eng R 617; 90 ER 934
Under common law, tenant’s right to remove limited to trade, ornaments and domestic fixtures and did not include agricultural fixture but see Agricultural Tenancies Act (NSW)
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35. Fixtures and Third Parties
Equitable right to re-entry to remove the machinery arises out of contractual right and not referable to chattel itself. The hire-purchase agreement provided for the seizure of the goods. Kay’s Leasing Corporation Pt Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429
Right to remove affixed chattel is recognised as an equitable right see Wheeler JA Commissioner of State Revenue v TEC Desert Pty Ltd WASCA 128 McLure JA at 228; Metal Manufactures Limited v Federal Commissioner of Taxation [1999] FCA 172 per Emmett J at 189
Equitable right over un-severed tenant’s fixture may be transferred or retained by contract Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 per McLure JA at 226 “coexistence of contractual and proprietary remedies is well known at law”
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36. Unauthorized fixtures
Unauthorized fixtures: Brand v Chris Building Society [1957] VR 625
House mistakenly built on wrong allotment in new subdivision.
House determined to be a fixture, becomes property of land owner
If no estoppel raised, no remedy at common law or in equity for person who built the house
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37. Boundaries of Land – where does it end?
Common law maxim
Cujus est solum ejus est usque add coleum et ad inferos. -Everything up to the sky and down to the centre of the earth.
Boundaries of land: Baron Bernstein etc v Skyviews [1978] QB 479 at 488
Action in damages for trespass – photos taken from airplane flying over plaintiff’s property
Griffith’s J Balance
Balance is …best struck in our present society by restricting rights of an owner …. to such height as is necessary for the ordinary use and enjoyment of his land and the structures attached to it.
Eg Jib of Crane projecting onto airspace – see also LJP Investments v Howard Chia Investments (1989) 24 NSWLR 490
Advertising signs encroaching onto airspace
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38. Boundaries Land adjoining water: Tidal Water Boundaries
Presumption of Torrens and CL that land abutting seashore boundary is the high water mark
Mean high water mark assess by averaging out the annual tidal level reached by the spring and neaps
Land below the high water mark belongs to the Crown
Northern Territory of Australia v Arnhem Land Aboriginal Trust (The Blue Mud Bay case) (2008) 236 CLR 24 concluded that a fee simple created could confer rights which would preclude the holders of fishing licenses issued under the Fisheries Act nt from entering water
Non- Tidal Water Boundaries
Section 9 of the Water Act 1992 (NT) ad medium filum rule completely abrogated
At Common Law, ad medium filum rule meant that for a non- tidal river that the represents the boundary running between 2 properties is divided down the centre – nb rebuttable presumption if someone can establish that crown did not intend that boundary
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39. Boundaries Water Rights Accretion and erosion:
The rights of adjoining landowners to access water from a lake or river is regulated by the state. See Water Act 1992 (NT)
The crown owns the riverbed and hence any rights to access an use of adjacent rivers and streams have been abolished see ICM Agriculture v Commonwealth (2009) 240 CLR 140
Accretion and erosion:
Legal Boundary will change if the accretion or erosion:
If slow and gradual, imperceptible the boundary will change to reflect the change in land Attorney-General v Chambers (1859) 4 De G & J 55; 45 ER 22.
If the accretion or erosion is rapid and perceptible the boundary will remain unaltered and any land created will pass to the Crown as the owner of the of the sea from whence the soil came Blackstone 2 Bl Comm 262; Williams v Booth (1910) 10 CLR 341; Southern Centre of Theosophy v South Australia [1982] AC 706.
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40. Encroachment Encroachment onto land by buildings
Encroachment of Buildings Act (NT) ss13, 14 and 15
Error in the description of the land sections
Error as a result of incorrect survey
Misdescription of land in the contract
Broad remedies/relief available under s14
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41. Encroachment cont. Fence Boundaries Error in title Contractual Errors
No common law duty to maintain fence
Statutory basis
Error in title
Torrens Title indefeasibility
Contractual Errors
Depend whether term is fundamental
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