Possession of land

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This article deals with how to bring a claim for the recovery of land. To do this, the plaintiff does not have to prove he has absolute title, he only needs show that he has a better title than the defendant. This can be done in various ways:

  1. By showing title. This can be done by either:
    • Showing a registered Torrens title.
    • Showing documentation which traces ownership to the original land grant from the crown.
  2. By showing possession. Mere possession of land (even a wrongful one) is sufficient to maintain an action against anyone in the world except someone with a better title.[1] If the defendant also has rights arising out of possession, then:
    • Prior possession beats later possession.[2]
      • Except for when the prior possessor is barred from claiming against an adverse possessor. This will happen when the adverse possessor satisfies all of the following conditions:[3]
      1. The adverse possessor must be in possession of land as its owner.
      2. The adverse possessor must be exercising the ordinary rights of ownership.
        • Both of these factors must be evidenced by the use of the land (such as building something or cultivating it).
      3. The adverse possessor has done the above for the time prescribed by law without being challenged by the true owner (currently 12 years).

If the plaintiff successfully proves that his title is superior to the defendant's, he is allowed to recover the land.

This article is a topic within the subject Property, Equity and Trusts 1.


Required Reading

Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 139-163 [2.50]-[2.80]


In order to understand the principles governing possession of land (and the remedies to those who are dispossessed) it is necessary to first understand the legal history of this area of the law.

The Seisin

[4] In medieval times, 'Seisin' meant a freehold title (when one has seisin, he has ownership).

  • Having seisin allowed an owner to protect his rights to possession - he could bring 'real' actions (whereby the court allows specific performance and not just damages).
  • Leaseholders did not have seisin and therefore could not bring real actions.
  • To protect the rights of leaseholders, the remedy of 'ejectment' was created.
  • Today, seisin means having a freehold title and possession.


[5] Ejectment was an action which could be brought by leaseholders against a dispossessor despite not having seisin. Ironically, the action of ejectment was much more efficient and speedy in comparison to the complex 'real' actions allowed by the seisin.

  • Because of this, freeholders (who had seisin) also wanted to use ejectment.
  • They set up pretend leases just so they can have access to this remedy of ejectment.
  • Today, ejectment has been abolished by the Civil Procedure Act 2005 (NSW), s 20. The action for those who have been dispossessed is a claim for possession of land.

Recovery of possession of land

The action of ejectment was discussed in McPhail v Persons Unknown:

  • A court cannot suspend an order for possession against a trespasser.
    • This is because this would put the owner in a worse position than if he was to pursue self help, which would allow him to eject them immediately with reasonable force. Court actions should be preferable to self help.

It should be mentioned that a significant aspect of Lord Denning’s reasons in McPhail turned on the Rules of Court RSC O 113 and CCR O 26 (in England). The outcome might well be different in Australian jurisdictions.

Miscellaneous judgments

The following cases or observations flow on from McPhail:[6]

  • Selwyn Bibby v Suintra Pratap:[7]
    • An order may be suspended if owner acquiesces to trespassing - in McPhail, the owner did not 'acquiesce' to the defendants trespassing (he brought an action as soon as he found out). Where the owner allows the squatters to stay on the land for a few weeks, the squatters may be successful in obtaining a stay pending further appeal.
  • Warwick University v de Graff:[8]
    • No need to identify the squatters - usually, a person has to be identified before an action can be brought against him. However, in the case of squatters, the owner does not have to name or identify every squatter to bring an action against them. For obvious reasons, the courts are lenient with owners.
  • R v Wandsworth County Court:[9]
    • Owners can evict anyone squatting on their land, even if not party to the proceedings.
  • Hemmings v Stoke Poges Golf Club:[10]
    • An owner can forcibly enter a premises as long as the degree of force is reasonably necessary - Forcible entry is usually a crime. However, it cannot be used as a defence by squatters against landowners when they enter their own land, unless the land owner uses more force than is reasonably necessary.
  • Macintosh v Lobel:[11]
    • s 18 of the Imperial Acts Application Act 1969 (NSW) does not extinguish the CL remedy of self-help in regaining possession of land - with the enactment of the Imperial Acts Application Act 1969 (NSW) (specifically, ss 18-20), forcible entry became a statutory offence. Despite this, the above rule regarding forcible entry remains - a landlord is entitled to self-help using reasonable force.

Adverse possession

Note: adverse possession is considered in more detail in limitation of actions.

[12] Adverse possession is where one occupies another's land with the intention of using it as his own (ie, taking over someone's land). An adverse possessor can obtain full title (also called a 'squatter's title' ) over the land if he satisfies all of the following conditions:[13]

  1. The adverse possessor must be in possession of land as its owner.
  2. The adverse possessor must be exercising peaceably the ordinary rights of ownership.
    • Both of these factors must be evidenced by the use of the land (such as building something or cultivating it).
  3. The adverse possessor has done the above for the time prescribed by law without being challenged by the true owner (currently 12 years, used to be 20).

Adverse possession, and how an adverse possessor may bring an action for the recovery of possession of land is discussed in Asher v Whitlock:

  • Similarly to personal property, mere possession of land is sufficient to maintain an action against anyone in the world except someone with a better title.
    • This applies even to adverse possession.
    • "Possession is good title against all but the true owner".

The concept of adverse possession was also discussed in Doe d Carter v Barnard:[14]

  • Facts: the titleholder gave possession to his son in 1815. The son occupied the premises until his death in 1834, upon which time the son’s widowed wife occupied the premises until her ejectment in 1848. The ejector claimed the land under a mortgage from the titleholder.
  • Held: since more than 20 years had passed from 1815, the son had adverse possession. This means that the ejector doesn't have title, but it also means that the widow can't eject the ejector because she doesn't have title (the title rests with the son's heir, who was not a party to the proceedings. The widow was only in adverse possession for 13 years, so title has not moved to her.
    • Note: This case means that a jus tertii defence exists in relation to land - despite the fact that she has possession of the land, the widow was barred from bringing an action because there is a third party with superior rights (the son's heir).

However, Doe d Carter v Barnard has been overruled in Australia, by the ruling in Perry v Clissold:

  • A jus tertii defence does not apply to land. The existence of a third party with superior rights has no effects on the ability of a party with only a possessor title to bring actions against dispossessors.
  • In other words, an adverse possessor which satisfied the conditions of adverse possession acquires title and can bring actions against others.

The debate dealing with the defence of a jus tertii is really a debate of what title is necessary to bring a claim in ejectment/recovery of land (ie, does the existence of someone with a better title bar one from bringing a claim). This is debate is discussed in the next section.

Relativity of titles

[15] According to the theory of relativity of titles (advanced by Hargreaves), a plaintiff can bring a claim for the recovery of land as long as he can prove that he has a superior title to that of the defendant

  • The theory of relativity of titles is centred around the question of what sort of title is required to bring a claim to recover land.
  • In one side (the wrong one) of the debate, Holdsworth argued that one needs to show absolute ownership - ie, prove that he is the sole owner of the land through documentation evincing an unbroken chain of ownership, or through having been in adverse possession for 20 years (now 12).
    • Note that this view allows the use of a jus tertii defence - as long as a third-party has superior rights to the plaintiff, the plaintiff could not sue to recover land.
  • On the other hand, Hargreaves argued that what Holdsworth wants is very hard to prove, and rather, titles are relative. Some titles are superior to others, and all one has to do in order to maintain a claim is to prove that his is superior to his opponents. The relativity of titles is the accepted position.

Relativity of titles is further discussed in Allen v Roughley:

  • Unless someone becomes barred by statute or documentation, any form of prior possession allows him to bring an action in ejectment.

The Torrens system

[16] The significance of the relativity of titles has now diminished because of the introduction of the Torrens system in Australia.

  • The Torrens system is the establishment of a register which authoritatively records who has title in the land.
  • The purchaser does not need to investigate the title beyond the register, because the state guarantees the accuracy of the register.
  • This means that Hargreaves argument of the difficulty of determining true title becomes less appropriate, since it is now possible to determine the true title with ease.
  • However, the relativity of titles continues to apply because disputes may occurr between people who don't have the best title.

The Torrens system now also recognises adverse possession:

  • Under the Real Property Act 1900 (NSW), Part 6A, a person who satisfied the requirements of adverse possession may apply to be registered as the proprietor of that land in the registry of the Torrens system.

Mabo v Queensland (No 2)

[17] The question of possession of land came up in the prolific case, Mabo v Queensland (No 2) (note: there is no need to read the dedicated case page right now, it is covered later on in Native title):

  • ‘Possession gives rise to rights, including the right to defend possession or to sell or to devise the interest. A defendant in possession acquires seisin even if possession is tortiously acquired.’
  • Thus, all indigenous inhabitants in possession of their land on annexation are presumed prima facie to have a fee simple estate. The Crown need to prove that it has a superior title.
  • However, the Crown did not have a better claim to possession. Their claim of possession rested on the fallacy of equating annexation with possession. Actually, annexation only gave rise to radical title.[18] Thus, they did not have possession.
  • The Crown argued that the Indigenous people’s occupation was by Crown grant in 1882, and they were thus not in possession. There is no documentary evidence to prove this. Even if there was, this did not abrogate the Indigenous people’s possession, as they still had enjoyment of the land and it remained with them.
  • Note: this is not the basis on which the case was decided.


This is the end of this topic. Click here to go back to the main subject page for Property, Equity and Trusts 1.


Property Textbook refers to Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008.

Equity Textbook refers to Evans, Equity and Trusts, 3rd edition, Lexis Nexis, 2012.

  1. Asher v Whitlock (1865) LR 1 QB 1
  2. Allen v Roughley [1955] 94 CLR; Asher v Whitlock (1865) LR 1 QB 1
  3. Perry v Clissold (1907) AC 73
  4. Property Textbook, p. 139 [2.50]
  5. Property Textbook, p. 141 [2.54]
  6. Property Textbook, pp. 146-8 [2.61]-[2.67]
  7. [1991] 1 WLR 931
  8. [1975] 1 WLR 1126
  9. [1975] 3 All ER 390
  10. [1918-19] All ER Rep 798
  11. (1993) 30 NSWLR 441
  12. Elizabeth A. Martin (eds), A Dictionary of Law (5th ed), (2003) Oxford University Press
  13. Perry v Clissold (1907) AC 73
  14. (1849) 116 ER 1524
  15. Property Textbook, pp. 155-7 [2.76-8]
  16. Property Textbook, p. 157 [2.78]
  17. Property Textbook, pp. 157-63 [2.79]
  18. Radical title - the Crown is sovereign, but recognises previous law systems (such as Native Title) where they haven’t been extinguished by the new sovereign.
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