Adverse Possession Case Study
PROPERTY LAW - Adverse Possession
Introduction
To understand the comments made by Young J in Shaw v Garbutt (1996) 7 BPR 14 at 816, it is necessary to discuss the doctrine of adverse possession, it's requirements and the history of how this law has been interpreted.
Philosophy of adverse possession
The basic underlying philosophy for the doctrine of adverse possession is that historically land use has been favoured over disuse. The doctrine protects ownership by barring stale claims of non-occupiers and errors in the title records. The intention is not to "reward the diligent trespasser for his wrong nor to penalise the negligent and dormant owner for sleeping upon his rights..." .
At common law, the possession of land raises a prima …show more content…
He did this in two ways; firstly he considered other judges definition of "peaceable" (including internationally); and secondly, he considered how precedence within Australia dealt with the interpretation of an aggressive act to protect one's property whilst in adverse possession.
Young, J detailed the literal translation of words used by Bowen, CJ to be "without force, without stealth, and as of right" .
The Statute of Forcible Entry 1381 provides that entry into any lands except where entry is given by law must be peaceable and easy in manner. Contrary to this, is punishable by imprisonment. In Australia, the modern equivalent replacements provide 'that it is lawful for a person in peaceable possession of land with a claim of right to use such force as he or she reasonably believes to be necessary to defend his or her possession against any person whether entitled by law to possession of the property or not, provided bodily harm is no
Introduction
To understand the comments made by Young J in Shaw v Garbutt (1996) 7 BPR 14 at 816, it is necessary to discuss the doctrine of adverse possession, it's requirements and the history of how this law has been interpreted.
Philosophy of adverse possession
The basic underlying philosophy for the doctrine of adverse possession is that historically land use has been favoured over disuse. The doctrine protects ownership by barring stale claims of non-occupiers and errors in the title records. The intention is not to "reward the diligent trespasser for his wrong nor to penalise the negligent and dormant owner for sleeping upon his rights..." .
At common law, the possession of land raises a prima …show more content…
He did this in two ways; firstly he considered other judges definition of "peaceable" (including internationally); and secondly, he considered how precedence within Australia dealt with the interpretation of an aggressive act to protect one's property whilst in adverse possession.
Young, J detailed the literal translation of words used by Bowen, CJ to be "without force, without stealth, and as of right" .
The Statute of Forcible Entry 1381 provides that entry into any lands except where entry is given by law must be peaceable and easy in manner. Contrary to this, is punishable by imprisonment. In Australia, the modern equivalent replacements provide 'that it is lawful for a person in peaceable possession of land with a claim of right to use such force as he or she reasonably believes to be necessary to defend his or her possession against any person whether entitled by law to possession of the property or not, provided bodily harm is no