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Adverse Possession of Common Property

Friday, 17th October 2014

By Michael Pobi - Pobi Lawyers.

I am surprised by the number of lot owners who have approached me claiming that they have had possession and use of a specified part of common property for many years and believe it would be unjust or unfair in the circumstances for the owners corporation to remove their right. When I ask what right are you referring to, I am informed it is a right of adverse possession.

So, what is adverse possession and can it exist over common property?

Adverse possession is a doctrine of land law where a person either occupying or in possession of land legally owned by another may acquire ownership and title to the occupied land. To succeed in a claim for adverse possession at common law, the following legal elements need to be met:

  • The occupier must act as though they own the property
  • The occupier's possession and occupation of the land must be continuous and uninterrupted
  • Hostility.  Possession must be adverse to the interests of the legal owner and without permission of the legal owner
  • Exclusivity.  The occupier must exclusively possess the land to the exclusion of the legal owner and not share possession with the legal owner
  • The occupier must use the land openly. 

In our view, it is impossible for a lot owner to succeed in a claim for adverse possession of a specific part of common property for the following reasons:

  • Common property is not capable of being dealt with except in accordance with the provisions of the Strata Schemes (Freehold Development) Act 1973 (“SSFDA”) and the Strata Schemes Management Act 1996 (“SSFMA”): Section 21 of the SSFDA.
  •  A lot owner can only be granted exclusive use rights and special privileges over common property pursuant to a sections 51 and 52 of the SSMA by-law. In Chauhan v Jaynrees Services Pty Limited [2008] NSWSC 969, His Honour Young CJ in Equity (as he then was) observed that in North Wind Ltd v Proprietors— Strata Plan 3143 (which was concerned with the predecessor to the SSMA), the judge considered that the rights which flowed from a by-law were probably contractual. He then stated, in obiter dicta, that the rights under the SSMA appeared to be statutory, and that the rights were probably proprietary sui generis rather like the proprietary right that was referred to by the High Court of Australia in North Shore Gas Company Limited v Commissioner of Main Roads [1967] HCA 41.

Accordingly, it is unlikely that the legislature intended that lot owners obtain rights over common property other than in accordance with the provisions of the SSMA and SSFDA.

  • Some lot owners have raised the argument that the owners corporation is estopped (or prevented) from denying that the lot owner, by their open and continued use and occupation of the common property, has a claim in adverse possession over the specified part of common property. It is clear that the law states that an estoppel cannot override the provisions of a statute, where to establish the estoppel would create an inconsistency with mandatory statutory provisions: see Attorney- General (NSW) v Municipal Council of Sydney (1919) 20 SR (NSW) 46; Chalmers v Pardoe [1963] 3 All ER 552.

Accordingly, a claim that the owners corporation is estopped is unlikely to succeed given that you cannot have an estoppel in the face of the statute.

If you require advice on any of the issues referred to above, please contact us.

Please note that the information contained in this article is not legal advice and should not be relied upon as such. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.  


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