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1 U.N.S.W.L.J. 175 (1975-1976)
Adverse Possession and the Real Property Act

handle is hein.journals/swales1 and id is 185 raw text is: ADVERSE POSSESSION AND THE REAL PROPERTY ACT BY ROSEMARY OSBORNE* Mr Lawson: ... Is it a fact that there is no provision in the New South Wales Real Property Act whereby persons holding land by adverse possession upwards of 25 years and paying rates thereon can secure a title to it? Is it a fact also that in Victoria under the Transfer of Land Act, which is similar to the Real Property Act of this state, there is such provision? Is it a fact that this is holding up improvements and development of property, and will the Minister look into the position with a view to introducing legislation that will grant a similar title to that conferred by the Victorian Act?' Adverse Possession, Prescription and the Real Property Act 1900 (N.S. W.) Where land in New South Wales is held under Old System title an occupation of that land inconsistent with the rights of the true owner will extinguish, at the expiration of a prescribed period, the remedy and therefore also the title of the true owner. The person in adverse possession gains a new possessory title despite the fact that his original entry on the land was wrongful. The prescribed period of possession in N.S.W. is provided for in the Limitation Act 1969 (N.S.W.); it is twelve years for private land and thirty years for Crown land. Where, however, the land is held under Torrens Systems title section 45 of the Real Property Act bars a person from acquiring title to the land by adverse possession. The section provides: No title to land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitation relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of such statute. The justification for this section becomes apparent when the rationale for the existence of the Real Property Act is examined and compared with that of the Limitation Act 1969 (N.S.W.) and its forerunners. The aim of the Real Property Act as its preamble states is to consolidate the Acts relating to the declaration of title to land and the facilitation of its transfer. It seeks to replace a system in which title is proved by the cumbersome procedure of producing title documents (where these exist). At common law under the nemo dat qui non habet principle the purchaser acquires no better title than the one which the vendor is able to convey. This means that costly and time consuming searches are also necessary to ensure that the vendor gives good title to the land. The Real Property Act eliminates both shortcomings by a system of state registration of title. The operative act to transfer title is performed by the Registrar when he registers the instrument. Section 41 provides: No instrument till registered in a manner herein before prescribed, shall be effectual to pass any estate or interest in any land under the provisions of this * Fifth year student, 1975. 1. N.S.W. Parl. Deb., 28 March 1963, 3864.

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