Many years ago, some farm land near Newcastle was subdivided into several smaller blocks of land. There was a narrow strip of land measuring approximately 3.5 metres wide and 18 metres long between numbers 5 and 7.
Numbers 5 and 7 were sold, but the narrow strip of land between them was retained by the owner of the farm land. The owner of the farm gave number 7 permission to travel over the strip of land to get access to number 7.
The owner of the strip of land died in 1906. Her legal representative had not done anything in relation to the land until 2017 when the legal representative attempted to sell it to the owner of number 5.
Over a period of more than 20 years the owner of number 7 and his tenants used the strip of land as if they were the owners of it. They parked their cars and camper trailer on the strip of land. They dug up the land and laid drainage pipes under it. They made a garden on it and resurfaced part of the land to create a driveway. This was all done without the permission of the owner of the land. The owner of number 7 also paid the water rates on the strip of land.
We represented the owner of number 7. We argued that he had occupied the strip of land openly, peacefully and without permission, with the intention of excluding all others. We argued that after 12 years of doing so, the rights of the original owner had been extinguished.
The NSW Supreme Court1 agreed and said the owner of number 7 was entitled to be registered as the owner of most of the strip of land.
The effect of the Court's decision is that the size of the land at number 7 has been increased to include most of the strip of land.
What this case shows is that if you have given someone permission to use your land you should ensure that the use of the land is consistent with the permission you have given them. If someone occupies your land without your permission, and you do nothing about it, you may lose your land.