Can Your Descendants Inherit Your Adverse Possession Claim to a Property?

14 DEC 2020

 

The question that may be lingering in the back of your mind, is what happens to my adverse possession claim when I pass? Will my adverse possession claim pass onto my descendants and will they be entitled to keep the property? This question was discussed in the recent NSW Supreme Court case of Pauperis v Pauperis [2020] NSWSC 1470.

What is Adverse Possession?

Adverse possession is the process whereby a person takes possession of a property for 12 years or more and applies to the Registrar-General to become the registered proprietor of the property. In saying this, there are a number of requirements which need to be met in order for one to make a successful claim for the title of a property.

Background

Mrs Steigis passed away in 1969 without a will and left behind two properties, one located in Sanctuary Point (vacant land) and the other located in Bankstown. After Mrs Steigis passed away, her relatives from Germany did not claim the properties despite several attempts to find them. In the meantime, Mr and Mrs Paureris took possession of the properties. Mr and Mrs Paureris ensured that the rates on the properties were paid and used one of the properties for investment purposes. 

Mrs Paureris did not make an adverse possession claim over the two properties and passed away in 2012. Mr and Mrs Paureris’ son, Kurt, continued maintaining the properties and successfully made an adverse possession claim over one of the properties in 2016 and listed the properties for sale. Shortly after, Mr and Mrs Paureris’ other son, Ralph, discovered that the property was listed for sale, he registered a caveat over the two properties. A caveat is an instrument that limits the ability of the owner of a property to deal with the property (including transferring property from A to B) as it provides notice that another person may have an interest over the property.

In the NSW Supreme Court, Ralph argued that Kurt did not comply with his duties as the executor of the estate of the late Mrs Paureris’ as Kurt had claimed the property for himself and did not make an adverse possession claim, which would have benefited Mrs Pauereris’ estate. Ralph further argued that Kurt only maintained the properties as per the arrangements made with Mrs Paureris. For those reasons, Ralph concluded that there was no adverse possession claim in the first place and the interest in the properties should have been passed through Mrs Paureris’ estate.

On the other hand, Kurt argued that he had a better adverse possession claim over Mrs Paureris as Kurt controlled the property well before Mrs Paureris passed away.

So the question arose, did Kurt have a legitimate adverse possession claim over the properties or did Mrs Paureris’ have legal possession over the properties at the time that she passed away meaning her interest should have passed through her estate? 

Findings

The Court ruled that Kurt never had an adverse possession claim over the properties as there was never any evidence that Kurt had controlled the properties under his own terms. Mrs Paureris had all the bills under her name and gave Kurt express permission to live on the property as long the property was maintained and all his rates and outgoings were paid. Once Mrs Paureris passed away, Kurt was simply following Mrs Paureris’ terms to maintain the properties and pay the rates, which meant that Kurt was never entitled to the adverse possession claim.

Furthermore, Mrs Paureris did not transfer the rates and outgoings to Kurt’s name before she passed away so the Court found that there was no intention to give Kurt any possession over the properties. Therefore, as Mrs Paureris had an interest at the time that she passed away, this interest was passed through her estate.

Let us help you

Should you find yourself in a situation where you may be able to claim adverse possession over a property, please contact Ben Wong on bwong@marsdens.net.au to ensure your rights are being protected and upheld.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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