New South Wales Consolidated Acts

REAL PROPERTY ACT 1900 - SECT 45D

45D Application for title by possession

(1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and--

(a) the land is a whole parcel of land,

(b) the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land, and

(c) the land is comprised in an ordinary folio of the Register or is comprised in a qualified or limited folio of the Register and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the creation of the qualified or limited folio of the Register,

that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land.

(2) Where, at any time after the commencement of this Part--

(a) a person is in possession of part only of a whole parcel of land, and

(b) any boundary that limits or defines the land in the person's possession is, to the extent that it is not a boundary of the whole parcel of land, an occupational boundary that represents or replaces a boundary of the whole parcel,

the person may, unless the part of the whole parcel of which the person is in possession lies between such an occupational boundary and the boundary of the whole parcel that it represents or replaces, apply to the Registrar-General to be recorded in the Register as the proprietor of the same estate or interest in that whole parcel of land as could have been the subject of an application by the person under subsection (1) if the land in the person's possession had been that whole parcel of land and subsection (1) (b) and (c) had been complied with in relation thereto.

(2A) A person who--

(a) is in possession of part of a residue lot that could, if it had been a whole parcel of land, have been the subject of an application by the person under subsection (1), and

(b) is (or is entitled to be) the registered proprietor of an estate in fee simple in land that adjoins that lot,

may apply to the Registrar-General to be recorded in the Register as the proprietor of an estate in fee simple in land consisting of a consolidated lot comprising the part of the residue lot in the person's possession and the adjoining land.

(2B) In subsection (2A),
"residue lot" means an allotment consisting of a strip of land that the Registrar-General is satisfied--

(a) was intended for use as a service lane, or

(b) was created to prevent access to a road, or

(c) was created in a manner, or for a purpose, prescribed by the regulations.

(3) A possessory application may not be made in respect of an estate or interest in any land, or in any part of any land, of which--

(a) Her Majesty or a Minister of the Crown,

(b) a statutory body representing the Crown,

(c) a corporation which is constituted by an Act and of which, in the case of a corporation aggregate, at least one of the members is appointed by the Governor or a Minister of the Crown, or

(d) a council, county council or joint organisation within the meaning of the Local Government Act 1993 , or

(e) the owner of a transacted distribution system or transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015 ,

is the registered proprietor.

(4) A possessory application may not be made in respect of an estate or interest in land if--

(a) the registered proprietor of that or any other estate or interest in the land became so registered without fraud and for valuable consideration, and

(b) the whole of the period of adverse possession that would be claimed in the application if it were lodged would not have occurred after that proprietor became so registered,

unless the application is made on the basis that the estate or interest applied for will be subject to the estate or interest of that registered proprietor if the application is granted.

(5) A possessory application shall be in the approved form and shall be accompanied by such evidence and documents of title, and (in the case of an application under subsection (2A)) such evidence of concurrence on the part of the local council, as the Registrar-General may require.

Note--: With an application made under subsection (2A), it is not necessary to include a consolidated plan at first instance.

(6) For the purposes of subsection (2), a reference to an occupational boundary that represents or replaces a boundary of a whole parcel of land is a reference to--

(a) a fence, wall or other structure intended to coincide with or represent that boundary of the whole parcel,

(b) a channel, ditch, creek, river or other natural or artificial feature that is itself land and is in close proximity to that boundary of the whole parcel, or

(c) a give and take fence with respect to that boundary of the whole parcel.

(7) Where--

(a) land to which Part 3 applies has been or is being purchased from the Crown, and

(b) but for this subsection, a holder of the land at any time after the commencement of the purchase would not, at that time, have had an estate in fee simple in the land,

the holder shall, for the purposes of subsection (1), be deemed to have had such an estate at that time.

(8) Where--

(a) a limitation period for a cause of action to recover land to which Part 3 applies has commenced to run, and

(b) after that commencement a folio of the Register is created in respect of the land pursuant to Part 3,

the time which elapsed after the limitation period commenced to run and before the date on which the folio of the Register was created may be counted in the reckoning of the limitation period for the purposes of a possessory application in respect of the land.

(9) Subsection (8) applies to a limitation period for a cause of action to recover land notwithstanding that--

(a) the limitation period commenced to run, or

(b) the folio of the Register created in respect of the land pursuant to Part 3 was created,

before the commencement of that subsection.