Can you obtain adverse possession against a co-owner?
Have you ever wondered if you could claim sole ownership of a co-owned property if your co-owner moves out? The recent case of Angelo Edward Gianchino v Victoria Elizabeth Gianchino (in Her Personal Capacity and Her Capacity as Executor of the Estate of Susan Martha Gianchino) & Ors [2023] VSCA 162 illustrates that claiming possession of the property to the exclusion of your co-owner can be as simple as saying no and changing the locks.
Back in 1983, Angelo and Susan Gianchino jointly purchased a house in Mont Albert. In July 2004, Angelo moved to Toowoomba (Queensland), expecting that Susan and their children, Victoria and Ben, would shortly follow. A few weeks later, Susan said no – she told Angelo that she and the children would not be following him to Toowoomba and changed the locks. Angelo and Susan separated but were never formally divorced.
When he left, Angelo had left some personal belongings at the house. In March 2005, at Angelo’s request, Susan shipped some of Angelo’s belongings to him. In September 2005 Angelo requested access to the house from Susan to collect some personal belongings. Once he left, Susan changed the locks again. From July 2004 to May 2008, Angelo continued to make payments towards the mortgage of the house. However, during the trial Angelo agreed that the mortgage payments were made by way of maintenance contribution for his children.
Fast forward to February 2019 – Susan had passed away. By June 2019, after learning about Susan’s death, Angelo sought to become the sole registered proprietor of the house by right of survivorship. Victoria and Ben had continued to live in the house and in response to Angelo’s application, they filed a writ claiming possessory title over the land relying on s 14(4), or alternatively s 14(1) of the Limitation of Actions Act 1958 (LAA).
Section 14
Right of action not to accrue or continue unless there is adverse possession
(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as “adverse possession”); and where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue until adverse possession is taken of the land.
…
(4) When any one or more of several persons entitled to any land or rent as joint tenants or tenants in common have been in possession or receipt of the entirety or more than his or their undivided share or shares of such land or of the profits thereof or of such rent for his or their own benefit or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons or any of them but shall be deemed to be adverse possession of the land.
What is adverse possession?
Adverse possession is a legal rule that enables the occupier of a piece of land to obtain ownership of it, provided they can prove uninterrupted and exclusive possession of the land for at least 15 years.[1]
What did the trial judge decide?
To meet the 15 year criteria for claiming adverse possession, Susan must have been in sole possession of the property before 23 July 2005.
The trial judge held that Susan was in adverse possession of the land as against Angelo from the time she changed the locks in August 2004 (alternatively from March 2005 due to a combination of other factors) and had taken exclusive possession of the property. Victoria and Ben simply continued that adverse possession after Susan died and were awarded ownership of the house.
The Appeal
Angelo unsuccessfully appealed to the Supreme Court of Victoria on the following grounds:
- Susan’s possession and occupancy of the land was with Angelo’s consent, therefore no adverse possession could have arisen prior to 23 July 2005; and
- Angelo derived some benefit from the land and/or Susan’s possession of the land, prior to 23 July 2005, such that no adverse possession could have arisen prior to 23 July 2005.
The Court agreed with the trial judge and held that when Susan changed the locks to the house in August 2004, she dispossessed Angelo and intentionally took exclusive possession of the land. The changing of the locks constituted the critical act of dispossession (although there were other supporting factors).
The Court rejected Angelo’s argument that the payment of mortgage instalments showed that Susan’s possession of the land was in part for the benefit of Angelo. His own characterisation of the mortgage payments as maintenance for his children was fatal to his argument. The Court also held that the storage of some personal items did not constitute possession for the benefit of Angelo.
So – what is to be taken from this decision?
Always be an active participant in the management and care of your assets! Had Angelo been more involved in the management of the property (or objected to Susan changing the locks) he may not have lost possession of the house.
[1] https://www.land.vic.gov.au/land-registration/first-time-here/land-registration-glossary/glossary-letters/apricots#:~:text=Adverse%20possession%20is%20a%20legal,for%20at%20least%2015%20years.