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Another Successful Adverse Possession Claim

Last year a Sydney developer was successful in his claim for legal title of an unoccupied house in Ashbury based on his uninterrupted occupation of the house for more than 12 years.

This year we see a further successful claim to title of land that is adverse, that is, not by consent of the true owner. Mr Hardy filed a claim in the Supreme Court for legal title to a strip of land in Redfern measuring approximately 88cm wide and 3.81 metres long (making a total of 3.35 square meters of land). The strip of land was situated at the rear of his property and was once part of the “dunny lane”, a throw-back to a time where the “dunny man” would collect waste from the brick outhouses at the rear of the terraced properties.

The basis of Mr Hardy’s claim was that he had been in possession of the strip of land for more than 12 years.

When Mr Hardy acquired the property in 1998, the strip of land was neither used nor usable as a right of way. It had been blocked off at various points by an old paling fence on one side and an old corrugated iron fence on the other side. Initially, Mr Hardy used the strip of land as a garden tool storage area. But by January 2005 he had landscaped the area by laying a weed mat covering the whole of the area and putting granite pavers and some mondo grass over the area.

In April 2018, new owners of the property situated on the southern side of the strip of land “reclaimed” the strip of land by building a barbecue area on the stirp of land and erecting a fence. The strip of land is illustrated in yellow in the schematic map.

The Court concluded that Mr Hardy had acquired possessory title to the strip of land. An action to reclaim the land should have commenced by no later than January 2017 (being 12 years since Mr Hardy took adverse possession of the land) by the neighbours’ predecessors in title. The defendant neighbours who had attempted to reclaim the land were found to have been trespassing upon Mr Hardy’s land and were ordered to remove the structures they had erected on the land and relocate the fence they had built.

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