By Michael Pobi – Pobi Lawyers
I am surprised by the number of lot owners who have approached me claiming that they have had possession and use of a specified part of common property for many years and believe it would be unjust or unfair in the circumstances for the owners corporation to remove their right. When I ask what right are you referring to, I am informed it is a right of adverse possession.
So, what is adverse possession and can it exist over common property?
Adverse possession is a doctrine of land law where a person either occupying or in possession of land legally owned by another may acquire ownership and title to the occupied land. To succeed in a claim for adverse possession at common law, the following legal elements need to be met:
In our view, it is impossible for a lot owner to succeed in a claim for adverse possession of a specific part of common property for the following reasons:
Accordingly, it is unlikely that the legislature intended that lot owners obtain rights over common property other than in accordance with the provisions of the SSMA and SDA.
Some lot owners have raised the argument that the owners corporation is estopped (or prevented) from denying that the lot owner, by their open and continued use and occupation of the common property, has a claim in adverse possession over the specified part of common property. It is clear that the law states that an estoppel cannot override the provisions of a statute, where to establish the estoppel would create an inconsistency with mandatory statutory provisions: see Attorney- General (NSW) v Municipal Council of Sydney (1919) 20 SR (NSW) 46; Chalmers v Pardoe  3 All ER 552. Accordingly, a claim that the owners corporation is estopped is unlikely to succeed given that you cannot have an estoppel in the face of the statute. Written by Michael Pobi, Pobi Lawyers.
Disclaimer: Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice specific to your circumstances before you take any action or otherwise rely upon the contents of this article.