A review of the application of adverse possession within the Torrens system of land regulation in Australia

Abstract

The doctrine of adverse possession is but one method of resolving boundary discrepancies in Australia. An abundance of research is available on the common law concepts of the doctrine. However little research has been conducted on how adverse possession is applied in Australian jurisdictions. The aim of this research is to conduct a review of the application of adverse possession within the Torrens system of land regulation in Australia by comparing and contrasting variations in legislation between states, and also forming recommendations of best practice. Comparing and contrasting legislation of Australian jurisdictions required the underlying Torrens statutes, case law, and other relevant statutes. Key to understanding the efficiency of a jurisdiction’s approach to the application of adverse possession is performing a brief analysis of the number of disputes related to adverse possession. This has been done over a limited time period of 15 years due to time constraints. Results showed that there are many differences between the four schemes used by Australian jurisdictions. Various strengths, weaknesses, and limitations were discovered when analysing the approaches. One of the more important findings is the fact that when adverse possession of less than a whole parcel is permitted by itself with no alternative boundary repair mechanism, more boundary disputes occur. This was evident in the results of the disputes analysis for Victoria. Four elements of ‘best practice’ were identified from the research performed. One such element identified is that if adverse possession of less than a whole parcel is permitted in a jurisdiction, than statutory encroachment should be offered as an alternative. When identifying ‘best practice’, it may not be possible to put together a set of criteria in which everybody is satisfied. However, components have been identified which work well and which may minimise disputes over land boundaries, being a fundamental objective of the Torrens system.