The Supreme Court of Western Australia recently handed down an interesting decision on the law of adverse possession in the matter of Ben-Pelech v Royle [2019] WASC 297.
Adjoining lots 238 and 239 on Hesperia Avenue, City Beach were both owned by Mrs Jean Freeth. There were side by side residential dwellings on the lots and Mrs Freeth lived in the dwelling on lot 239.
However, in 1993 Mrs Freeth decided to sell her properties. Lot 238 was purchased by Boaz and Hannah Ben-Pelech (the plaintiffs) and their son, and lot 239 was purchased by Glenn and Rosemary Royle (the defendants).
The plaintiffs gradually purchased other land adjoining lot 238, and demolished the existing houses. In late 2017 the plaintiffs subdivided four adjoining lots and created seven new lots.
However, the following problems arose:
The purchase contracts tried to address these issues by including special conditions which:
Before settlement, Ms Freeth engaged licenced surveyors to prepare a report to show the true position of the boundary between the lots and provided the defendants with a copy of the report.
In 1993 the parties agreed to demolish, and then demolished, the old fence and erected a new fence (the replacement fence) on the ‘correct’ boundary.
In mid 2017 it came to light that in 1992 the surveyor had wrongly placed the front corner survey peg 0.53 m from the correct position, which had caused an increase in the frontage for lot 239 and a consequent decrease for lot 238.
The plaintiffs sought a declaration that the boundary between the two adjoining lots conform to the certificate of title, and permission from the court to:
The defendants opposed this and counterclaimed that they held possessory title over the disputed area (through adverse possession) due to their continuous use and possession of the disputed area.
The replacement fence extended along approximately two-thirds of the boundary. Near where the fence ended there was a side gate affixed to the fence on the defendants' lot. When the gate was closed it effectively sealed off and secured the rear area at the back of the defendants' house from general access (rear area). The rear area had a side garden, pool and trees along the fence. From 1993 the defendants added garden beds, limestone blocks and reticulation pipes. Justice Kenneth Martin found that the defendants had made good their claim to adverse possession over the rear area on the basis that:
From 1994 the area from the start of the replacement fence to the Hesperia road verge (front area) had been open and unenclosed, being either sand or lawn. In 1998 the defendants planted 5 olive trees in the front area and made a garden bed during their renovations. The defendants asserted evidence of continuous use by watering, tending, mulching, mowing, edging, and generally maintaining the front area.
His Honour dismissed the claim for adverse possession of the front area, finding that unlike the rear area where the physically observable to third parties, continuous enclosure was more strongly established by the fixed in situ position of the replacement fence and the capacity to close off the rear area by the use of gate, the evidence of ‘exclusive use’ of the front area was not unequivocal enough to match the clarity of what is required to establish adverse possession.
The court also rejected the plaintiffs’ technical arguments raised in relation to the ‘cleansing effect’ of s 163 of the Transfer of Land Act 1983 (WA) and s 123 of the Property Law Act 1969 (WA), as well as the plaintiff’s allegation that the defendants had consented to the possession.
Ultimately, the plaintiffs failed in their claim relief for a court ordered demolition of the replacement fence.
If you have any questions in relation to the issues raised in this article, or require advice as to how to protect the integrity of your real estate interests, please do not hesitate to contact Peter Beekink or James Steedman.
