Adverse Possession Essay

1339 words - 6 pages

1(a) Summary of factsPerry Schmeiser is the registered proprietor of a paddock known as Lot 4 in DP654321.On 5 March 2001, Georgia Greene asked permission to have her horses graze in the paddock. Schmeiser agreed but only for 6 months, as he wanted the land vacant by 1 September 2001.Between 6th March and June 2001, Greene put water trough the paddock, fixed some of the gaps in the fences, cultivated the land and put up a sign saying 'Please Don't Enter - sensitive quinoa seeds growing'.In August 2001, Schmeiser sent Greene a letter asking her to remove the horses from the paddock by 1 September. Greene didn't respond.In June 2002 Schmeiser visited the property and told Greene he wanted it ...view middle of the document...

Submission 4: Possession must have the required open intention. The Plaintiff did not demonstrate her intention for possession. The act of restoring the fence does not demonstrate her intention of excluding the documentary owner.Submission 5: The Plaintiff did not show the open intention of possession due to the fact she did not pay the rates nor taxes.Submission 6: Where the possessor is aware that the documentary owner is holding the land for a future use, no possessory title will be given,Submission 7: The use of the property was intended for a dairy cattle, not planting organic seeds.Submission 8: The possession must be peaceful, meaning without violence. The defendant was threatened by the Plaintiff's partner by a gun.(c) Statement of submissionsSubmission 1: The agreement between the parties for the period 5th March 2001 to 1st September 2001, was a bare licence granted by the defendant to enter and use lot 4 by the plaintiff. A licence cannot give rise to a proprietary interest in the land as noted in Cowell v Rosehill Racecourse Co Ltd (1936)56 CLR 605, because the test of exclusive possession cannot be satisfied. Radaich v Smith (1959) 101 CLR 209. Subsequently the plaintiffs 12 year period, for claiming a possessory title, as specified by the Limitation Act 1969 (NSW)ss27(2) and 65 cannot begin.Submission 2: The Limitation Act 1969 (NSW)s54, provides that plaintiff's 12 year period was suspended when she confirmed the defendants superior title to the land by an offer made on 1st July 2002 to purchase the property. Edginton t v Clark [1964] 1 QB 367. The offer was made in writing with a presumption it contained a signature therefore satisfying the strict requirements within Limitation Act 1969 (NSW)s54(4). Offer to purchase is an acknowledgement of the documentary owner's superior title. Refina Pty Ltd v Binnie [2009] NSWSC 914.Submission 3: Plaintiff was not granted an application for a title under Real Property Act 1900 (NSW)s45D, because her possession became adverse only on 1st July 2002 until July 2013. The statutory period contained in the Limitation Act 1969 (NSW)s65 was not...

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