Is possession really nine-tenths of the law… Or rather an avoidable issue altogether?
Since the decision of McFarland v Gertos  NSWSC 1629 delivered October 2018, there’s been renewed interest in adverse possession rights, sometimes known as “squatter’s rights”. But it also serves as a timely reminder that estates ought to be administered promptly, to ensure that the property of a deceased person is transferred to the beneficiaries properly entitled to it under a will or intestacy.
The NSW decision received rather substantial news coverage, especially in comparison to a Queensland decision delivered a month later, in Re: Browne  QSC 297 which again reiterates the importance of promptly administering a deceased person’s estate, rather than putting ones head in the sand in hopes that the matter will never have to be dealt with. Re: Browne instead dealt with a farming property held by Mr Michael Browne who was born in 1868 and disappearing without any trace in about 1899. From the time of his disappearance, his property continued to be worked by his descendants who simply treated the property as their own, paying rates and the like. Despite this, the property remained registered to Michael Browne for the next 119 years. Sadly, had the estate administration issues been dealt with in a more timely manner (say, 100 years ago!), then the 2018 court application would never have been required.
The Supreme Court of Queensland was asked to issue an order registering the property to Michael Browne’s great-nephew, Francis, as adverse possessor of the property. Whilst the possibility of adverse possession was considered – and may well could have been applied in this instance – the court elected to bypass the adverse possession issues by reliance on the beneficial interests created by the intestacies and wills of Francis’ predecessors. This took form in utilising an rarely-used provision of the Land Titles Act, being section 114, which enables the Supreme Court to order the removal and registration of persons from the registered title – so entirely avoiding the issue of adverse possession in this matter.
So it would appear there’s more than meets the eye when it comes to squatter’s rights, especially where dealing with a long-standing family property. But still gives credence to the old saying, that possession is nine-tenths of the law…
Saying that, it’s always important for estates to be properly administered. Had the succession of the property been dealt with in the years after Michael’s disappearance – as opposed to more than 100 years later – then the legal saga above likely could have been avoided and the property dealt with by ordinary inheritance procedures. The applicant was very lucky in that it was possible to trace the chain of beneficial entitlements in his relatives’ estates, to establish his interest, and that he was able to marshal the evidence in support of his claim to the property. If he hadn’t been able to do so, the applicant may have been put to proof of his claim for adverse possession – and so incurred greater costs in establishing that claim.
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