13 August 2020

Adverse Possession

In Hardy v Sidoti [2020] NSWSC 1057 Kunc J states

These proceedings concern two very Australian phenomena: the “dunny” and dedication to home improvement. At issue is the ownership of a 3.35 square metre remnant of a “dunny lane” in Redfern, a suburb of historic significance for First Australians and in the development of Sydney as a city. 
At the end of the 19th century, Redfern suffered from typhoid epidemics “directly attributable to the lack of drainage, airless tenements, and the use of the cesspit system”.  Today, according to one writer, the suburb “has succumbed to a tsunami of smashed avocado and man buns”. Whatever the truth of that latter statement, those parts of Redfern which feature exquisitely renovated terrace houses are now highly prized Sydney real estate. The vestigial remains of “dunny lanes” are a reminder of a less sanitary past. 
The plaintiff, Mr Hardy, lives in a terrace house in Baptist Street, Redfern (the “Hardy Property”). The Hardy Property runs east-west, with its backyard garden at the western end, facing Dalley Lane. ... 
The second and third defendants (the “defendants”) bought a terrace house in Boronia Street, Redfern (the “Sidoti Property”). The two streets form a right angle. The second defendant, Mr Sidoti, is a builder experienced in renovating inner city properties. The Sidoti Property runs north-south, with its backyard at the northern end. ... 
The backyard of the Sidoti Property abuts the Hardy Property (the two properties taken in isolation forming a T shape). The rear of the Sidoti Property is burdened by a right of way. The right of way runs east-west along the length of the Hardy Property from Baptist Street in the west to Dalley Lane in the east. It burdens the rear of the seven north-south lots on Boronia Street (including the Sidoti Property) which abut the southern side of the Hardy Property. The right of way is the “dunny lane” which was created when those lots were originally subdivided and developed at the end of the nineteenth century to enable the nightsoil carter or “dunny man” to collect waste from the brick outhouses at the rear of the Boronia Street properties. 
These proceedings are about so much of the right of way as passes over the rear of the Sidoti Property adjoining the Hardy Property. According to a survey plan attached to the Second Amended Summons, it is approximately 88cm wide (close enough to 1 yard in Imperial measurement) and 3.81 metres long (making a total of 3.35 square metres of land). At the hearing, this strip of land was referred to as the “Yellow Land” because it was marked in that colour on the survey plan (and is shown as such on the Schematic). Mr Hardy and his then partner bought the Hardy Property in January 1998 by old system conveyance. A limited title under the Real Property Act 1900 (NSW) (the “Act”) for the Hardy Property was issued by the Registrar General in August 1998. At that time, what is now the Sidoti Property (and referred to as such on the Schematic) had been owned by the Theodorou family for 40 years. 
By January 1998, the Yellow Land was no longer used or usable as a right of way. It had been blocked off at various points, including at the western end of the Yellow Land. It was enclosed by an old paling fence on the northern side which ran along the southern, east-west boundary of the Hardy Property. On the southern side (i.e. 88cm into the Sidoti Property) it was enclosed by an old, corrugated iron fence which was itself in line with the rear of the old brick outhouse on the Sidoti Property. There were gates in each fence, providing access to the Yellow Land from both the Hardy Property and the Sidoti Property. 
Like his predecessor in title to the Hardy Property, Mr Hardy initially used the enclosed Yellow Land for what he accepted could be described as a “garden tool storage area”, storing gardening tools and related items at the western end. However, in May 2002, Mr Hardy took down the old paling fence dividing his backyard from the Yellow Land and an adjoining part of the right of way to the east over land still owned by the Theodorou family (referred to at the hearing and on the Schematic as the “Green Land”). From 2003 to early 2005, Mr Hardy and his then partner proceeded to make improvements to the backyard in a Japanese style extending it into the Yellow Land and the Green Land. By reason of that and other conduct, Mr Hardy’s case is that he has acquired the legal title to the Yellow Land by adverse possession. 
In September 2005, the Registrar General converted the Sidoti Property to limited title. 
The defendants purchased the Sidoti Property from the Theodorou family in April 2018. The Yellow Land was included on the title as part of the Sidoti Property. As part of the renovation of the Sidoti Property, the defendants demolished the brick outhouse and the old corrugated iron fence which stood on the southern side of the Yellow Land, built a new fence on the northern boundary of the Yellow Land (where the old paling fence had been, and thereby purporting to reclaim the Yellow Land from Mr Hardy) and built a barbeque area on the Yellow Land to form the rear of the backyard of the Sidoti Property. 
The Court’s conclusions may be summarised as: 
The Sidoti Property is land under the Act. 
Possessory title to land under the Act can generally only be acquired in accordance with the provisions of Part 6A of the Act. If the Act applies in this case, Mr Hardy’s case must fail as against the defendants. 
The Act does not apply because Mr Hardy’s adverse possession of the Yellow Land commenced by no earlier than either May 2002 (with the removal of the old paling fence as the commencement of the extension and landscaping of Mr Hardy’s backyard garden) or no later than January 2005 (by which time landscaping was well advanced including laying a weed mat covering the whole area including the Yellow Land and the Green Land and putting granite pavers and some mondo grass on the Yellow Land), and was extant as such when the Sidoti Property was brought under the Act in September 2005. By reason of ss 28U(2) and 45C(2) of the Act, the Act does not prevent Mr Hardy’s acquisition of a possessory title by adverse possession of the Yellow Land at common law. 
Pursuant to s 27(2) of the Limitation Act 1969 (NSW) (the “LA”), the relevant limitation period for an action by the Theodorou family as then documentary title holders to recover the Yellow Land land had expired no later than January 2017. At that time their title to the Yellow Land was extinguished (s 65(1) of the LA). It follows that the defendants did not acquire title to the Yellow Land when they purchased the Sidoti Property in April 2018. 
Mr Hardy has therefore acquired possessory title at common law to the Yellow Land. He is entitled to orders to recognise that ownership, including that the defendants cease to trespass upon the Yellow Land, and by removing structures they have erected on it and relocating the fence they have built.