Adverse Possession in Plain Sight: Can a person gain title to a residential property by quietly using it for storage while publicly claiming they have the owner’s permission?

Based on the authentic Australian judicial case Willis v Abraham (No 2) [2025] NSWSC 276, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales
Presiding Judge: Elkaim AJ
Cause of Action: Action to recover possession of land; defence and cross-claim alleging adverse possession; limitation period defence under Limitation Act 1969 (NSW)
Judgment Date: 27 March 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Adverse possession
Keyword 3: Limitation Act 1969 (NSW)
Keyword 4: Possession must be open and adverse
Keyword 5: Intention to possess and physical control
Keyword 6: Residential use versus storage use

Background

A registered proprietor (the Plaintiff) sought possession of two neighbouring residential properties. The Defendant initially resisted the claim to both properties, then abandoned resistance for one property but continued to fight for the other. The dispute was not simply about who had physically been on the land, but whether the Defendant’s long-term involvement with the property amounted to adverse possession capable of starting a twelve-year limitation clock running against the registered proprietor. The case turned on how the Court should assess quiet occupation, ambiguous conduct, and credibility where the property looked derelict from the street but was said to be used as a “base”.

Core Disputes and Claims

The parties distilled the contest into two primary questions:

1. Was the Defendant in adverse possession of the property the Plaintiff sought to recover?
2. If yes, over what period was that adverse possession maintained?

The Plaintiff’s claim/relief sought:
– Judgment for possession and leave for a writ of possession; dismissal of the Defendant’s cross-claim; costs.

The Defendant’s position/relief sought:
– A finding that the Plaintiff’s proceedings were time-barred under ss 27 and 28 of the Limitation Act 1969 (NSW); and, by cross-claim, recognition of title based on adverse possession, in a manner capable of overcoming the statutory protection of registered title under s 45C of the Real Property Act 1900 (NSW).

At the centre of the case was a deceptively practical question: is it enough to clean a derelict house, change locks, store furniture, and sometimes study there, while leaving the house looking abandoned and telling enquirers that the owner has given permission?

Chapter 2: Origin of the Case

The relationship between the parties was not a commercial contract with neat documents and clear signatures. It was a collision between absentee ownership and opportunistic occupation, complicated by the physical condition of the properties and a long period in which formal oversight was minimal.

The Plaintiff inherited the subject properties in 1999. A tenant remained in one of the properties for a short period after the inheritance, then vacated. The property required extensive works to be re-let. Without funds to renovate, the Plaintiff did not re-let it. However, an agent remained involved for many years, dealing with management functions and payments such as rates, which became an important thread in the evidence.

The Defendant’s pathway into the properties began with a story about “abandoned” premises. The Defendant said she heard about apparently abandoned properties and visited them around October 2009. From her account, one property appeared uninhabitable; another looked occupied; and the disputed property looked abandoned, with signs consistent with squatters.

From there, the Defendant described a slow process: monthly visits, cleaning, gardening, securing doors and locks, and placing “non valuable” items inside. Later, when moving to Sydney, she used the disputed property as overflow storage because her family home could not hold all possessions. Over time, she and her adult child became more physically present in the properties, including using them for study and, later, residence.

On this narrative, the Defendant framed her conduct as the practical reclaiming of an abandoned dwelling. But the Court’s task was not to reward industriousness in a vacuum. The Court had to decide whether the Defendant’s conduct was adverse to the registered proprietor, sufficiently open, and accompanied by the necessary intention to possess as against the world, including the true owner.

Detail Reconstruction: How everyday decisions became legal evidence

This case shows how ordinary-seeming steps can become decisive in an adverse possession contest:

• Repairs that show control: changing lock barrels, installing a door, moving furniture in and out.
• Choices that hide occupation: leaving broken windows unfixed so the house looks derelict and unattractive.
• Communications that reveal intention: telling neighbours, relatives, agents, and council who you are and why you are there.
• Payments that can be probative or poisonous: rates paid honestly can support an inference of ownership-like responsibility; rates paid through impersonation can destroy credibility and suggest tactical fabrication.

Conflict Foreshadowing: The decisive moments

The pivotal moments were not dramatic confrontations at the front gate. They were small exchanges:

• A conversation with a family member of the Plaintiff’s family who questioned the occupiers’ authority.
• The occupier’s response: presenting the occupation as permitted by the owner.
• Later communications with the property manager asserting that the owner “knows me”, “gave me the keys”, and that the occupier could sue for trespass if the agent entered.

These were the moments where the Defendant, rather than openly asserting a hostile title, presented herself as someone with permission. That choice, while potentially useful to avoid conflict, pulled in the opposite direction from the requirement that adverse possession be hostile to the true owner’s title and “clear to the world”.

Chapter 3: Key Evidence and Core Disputes

This was an evidence-heavy contest. The Defendant carried the practical burden of running the adverse possession narrative, consistent with the usual forensic posture in such cases, and consistent with the onus resting upon the person asserting adverse possession.

Applicant’s Main Evidence and Arguments (Plaintiff)

1. Registered title and historical control

– The Plaintiff relied upon documentary ownership and the continuing relationship with a managing agent for many years. The agent’s involvement supported an inference that the Plaintiff had not abandoned possession and that any intrusion by others did not automatically become adverse possession.

1. The property’s outward appearance and lack of obvious occupation

– The Plaintiff emphasised that, for years, the property presented as derelict and unoccupied to neighbours and passers-by. This went to the requirement that adverse possession be open and visible rather than concealed.

1. Corroborating documents inconsistent with the Defendant’s claimed timeline

– Photographs taken in March 2011 and placed in a folder labelled “Squatter” showed the interior and condition consistent with squatter detritus rather than an orderly storage facility.
– A contemporaneous invoice from a maintenance provider addressed to the agent described garden work, rubbish removal including a mattress, and installation of mesh. Those items suggested ongoing agent involvement and physical dealings with the property inconsistent with a stable, exclusive possessory regime in favour of the Defendant at that time.

1. Credibility and the “permission” theme

– The Plaintiff attacked the Defendant’s credibility by pointing to conduct that suggested deception: representing to others that the occupiers had permission; communications implying authority; and a later rates payment made by impersonating the Plaintiff. This supported the proposition that the occupation was not openly hostile to the Plaintiff’s title.

Respondent’s Main Evidence and Arguments (Defendant)

1. Physical control over a long period

– The Defendant asserted entry around October 2009, continuing monthly visits, cleaning, gardening, repairing locks, storing items, and later moving more possessions into the property when relocating to Sydney.
– The Defendant relied on supporting witnesses, including friends and family, who described the property being used to store furniture and as a “base”.

1. Steps to secure and maintain the property

– Installing doors and locks and maintaining the garden were relied on as acts consistent with possession.
– Later improvements, including roof repairs, were relied on as ownership-like behaviour.

1. Time-based defence and adverse possession cross-claim

– The Defendant relied upon the twelve-year limitation period under ss 27 and 28 of the Limitation Act 1969 (NSW), arguing that the Plaintiff’s cause of action accrued when the Plaintiff was dispossessed or discontinued possession, and that the land was in adverse possession such that time ran.
– The Defendant sought a declaration of title by adverse possession to meet the statutory obstacle under s 45C of the Real Property Act 1900 (NSW).

Core Dispute Points

1. Nature of the possession: was it possession “in the nature of a residence”?
   The disputed property was a residential house. The Court had to decide whether storage use and occasional study amounted to the kind of physical possession that displaces an owner of a residence.

2. Openness: was the alleged occupation “open and manifest”?
   The Defendant’s deliberate decision to keep the property looking derelict, combined with statements to others suggesting permission, raised the question whether the occupation was sufficiently visible and hostile.

3. Intention to possess: did the Defendant intend to exclude the world, including the true owner?
   If the Defendant tried to obtain consent or held out that she had it, that conduct could be destructive of animus possidendi.

4. Documentary and corroborative evidence: what did photographs, invoices, and agent involvement prove?
   The Court had to reconcile witness accounts with documentary materials pointing to a different picture.

Chapter 4: Statements in Affidavits

Affidavits were not mere background paperwork in this case; they were the engine of each party’s narrative. They revealed not only facts but strategy: what each side chose to emphasise, what details were supplied, and what risks were taken.

How affidavits built competing realities

The Defendant’s affidavit strategy sought to construct continuity: a slow and steady accumulation of control from 2009 onward. It framed entry as a response to abandonment and the subsequent acts as caretaking and practical use. The affidavit language repeatedly emphasised cleaning, maintenance, storing property, and securing doors. The Defendant’s witnesses used similar framing, particularly describing the property as a “base”.

The Plaintiff’s affidavit strategy and supporting materials aimed to show that the Defendant’s story was not consistent with the objective record and not consistent with how a reasonably careful owner would detect dispossession. The key affidavit evidence from the tenant next door was particularly potent: she described living next door for years, being observant and social, and seeing no signs of occupancy at the disputed property, including using the disputed porch for bins and looking through a broken window into an apparently empty lounge room.

The boundary between untruths and facts: same event, different meaning

A striking example is the broken front window and the derelict presentation.

• On the Defendant’s telling, leaving the property in a run-down state was a security tactic to avoid attracting intruders.
• On the Plaintiff’s case, the same choice demonstrated that the occupation was not open, visible, and notorious. It helped conceal possession rather than proclaim it.

Another example is the question of permission:

• The Defendant’s communications suggested permission existed or could exist, creating an appearance of legitimacy.
• The Plaintiff’s analysis treated that same posture as fatal to adverse possession, because adverse possession requires hostility to the true owner’s title, not a reliance on consent.

Strategic Intent: why procedural directions about affidavits mattered

The Court’s procedural management also influenced how evidence landed. The Plaintiff indicated she would not rely on her own affidavits, and the Defendant then sought to rely on them. This unusual sequence affected the forensic balance: the Defendant could deploy the Plaintiff’s written evidence without being able to cross-examine the Plaintiff. In a case turning on credibility and historical conduct, that procedural posture heightened the importance of objective materials (photographs, invoices, agent involvement) and the internal consistency of witnesses.

Chapter 5: Court Orders

Before final orders, the case required practical procedural structuring typical of land recovery disputes with cross-claims:

• Directions allocating the running of the case to the party asserting adverse possession and the limitation defence, consistent with the forensic reality that the Defendant needed to establish the factual foundation for adverse possession.
• Management of affidavit evidence and witness availability, including the handling of witnesses who were not cross-examined under arrangements that avoided unfair forensic point-scoring.
• The crystallisation of issues so that the hearing focused on the two agreed primary questions: whether adverse possession existed, and if so, for what period.

These procedural steps mattered because adverse possession disputes can easily sprawl into character judgments and collateral issues. The Court’s focus on the essential legal tests forced the contest back onto the core elements: physical possession, intention, and openness.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing was the moment when each party’s narrative was stress-tested. This was not a case won by a single dramatic admission. It was decided by how a chain of evidence fitted together, and whether the Defendant’s account could satisfy strict legal requirements that are designed to protect registered title unless dispossession is clearly established.

Process Reconstruction: Live Restoration

Cross-examination exposed the central fragility in the Defendant’s case: the mismatch between “possession” as a legal concept and “use” as a practical habit.

Key pressure points included:

1. Residential character versus storage reality
   The Defendant’s evidence suggested the property functioned for many years as storage and occasional study. Cross-examination sharpened the question: can a residential house be possessed adversely if it is not used as a residence in the ordinary sense?

2. Visibility to the world
   Evidence emphasised that the front-facing presentation remained derelict: broken windows were not fixed; the property did not show ordinary signs of occupation. Cross-examination forced the Defendant’s side to explain why a claim requiring open possession was being built on intentional concealment.

3. Permission narrative and “holding out”
   When confronted with communications and interactions where the Defendant or her family presented the occupation as authorised, the Defendant’s attempt to soften or reframe the language became a credibility battleground. The Court treated these incidents not as minor slips but as revealing the posture taken: not hostile possession, but a claim of consent.

4. Documentary contradictions
   The Defendant’s timeline and claimed tidying-up and storage use were tested against photographs showing squatter-like conditions and an invoice documenting rubbish removal and repairs organised by the agent. These materials created a concrete anchor point in time that did not comfortably fit the Defendant’s claimed state of the premises.

Core Evidence Confrontation: the decisive collisions

Several evidence collisions defined the case:

• A neighbour-tenant’s account of no observable occupancy over years, including using the disputed porch for bins and seeing an empty lounge room through a broken window.
• Supportive witnesses describing furniture storage and use as a “base”, but with the Court ultimately inclined to regard them as potentially mistaken about dates or specifics rather than dishonest.
• Photographs and an invoice from March 2011 supporting the Plaintiff’s contention that the property was still in squatter-like condition and being dealt with by the agent.

Another decisive confrontation was the rates payment episode: the Defendant paid outstanding rates by impersonating the Plaintiff after proceedings had commenced. In adverse possession cases, payment of outgoings can sometimes support an inference of ownership-like control. Here, the manner and timing of payment had the opposite effect: it supported an inference of tactical behaviour and dishonesty, undermining the Defendant’s credit.

Judicial Reasoning: how facts drove result, and how law was applied

The Court anchored the legal analysis in established adverse possession principles: physical possession plus intention to possess, and the requirement that possession be peaceful, open, and not by consent.

The Court’s most determinative reasoning crystallised around two points: the quality of possession and its openness.

“No 5 is a residence. A residence, classically, is a place where a person sleeps, eats and ablutes. It is not a study or a storeroom or even an occasional place to sleep.”

This statement mattered because it translated an abstract legal test into practical reality. The Court treated the character of the land as central: what counts as physical possession depends on how such land is normally used and enjoyed. For a house, sporadic use as storage does not readily displace the owner’s possession in the way living there would.

“But using the property as a storeroom and occasional place of study is not in my view, using it in the nature of a residence.”

This was determinative because it answered the first element: even if the Defendant had some control, it was not the kind of possession that amounts to adverse possession of a residential house for limitation purposes, at least on the evidence as found.

The Court then addressed openness:

“Albeit for the good reason of not wishing to attract possible intruders, the defendant, deliberately, took no action to display her occupation to the outside world until much later.”

This was decisive because it confronted a common misconception. People often assume adverse possession rewards those who quietly look after an abandoned place. The law is stricter: adverse possession must be open and manifest, so that an owner reasonably careful of their interests could discover dispossession. The Defendant’s deliberate concealment, combined with presenting the occupation as authorised, undermined the “open” requirement.

The Court ultimately held the possession was not adverse in the required sense. As a result, the limitation period did not bar the Plaintiff’s claim, and the Defendant’s cross-claim for title by adverse possession failed.

Chapter 7: Final Judgment of the Court

The Court made orders granting the Plaintiff possession and dismissing the Defendant’s cross-claim. The operative outcomes were:

1. Judgment entered for the Plaintiff for possession of the property (the disputed residential property at Rozelle).
2. Leave granted to issue a writ of possession.
3. The Defendant’s cross-claim dismissed.
4. The Defendant ordered to pay the Plaintiff’s costs.
5. The Court indicated it would hear the parties if any change was sought to the costs order.

The result reflects the Court’s conclusion that adverse possession was not established, so the limitation defence did not prevent the Plaintiff recovering possession.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

This chapter breaks down the judgment using the Five-Link Structure: Statutory Provisions / Evidence Chain / Judicial Original Quotation / Losing Party’s Reasons for Failure, with the mandatory content order.

Special Analysis: why this case is jurisprudentially valuable

This judgment is valuable because it illustrates how adverse possession doctrine protects registered title through strict insistence on clarity. Two features are particularly instructive:

1. The Court treated the character of the land as controlling. A residential house is not possessed like a paddock or a vacant lot. Storage and occasional use are not readily equivalent to residential possession.
2. The Court treated ambiguity as fatal to the adverse possessor. Where acts can be read as caretaking, casual use, or consent-based occupation, the law requires the claimant to remove ambiguity by conduct that unmistakably asserts exclusive possession against the world.

This is a practical reaffirmation of a policy choice: adverse possession is an exceptional doctrine that defeats registered title. Because it can operate harshly, courts demand clear, affirmative proof.

Judgment Points: the Court’s most noteworthy determinations

1. Adverse possession of a residence requires possession consistent with residential use
   The Court effectively held that the relevant physical possession must match the ordinary use of the land. For a house, that means living there in the ordinary sense, not merely storing items or occasional study.

2. Openness is not optional, even if concealment is sensible
   The Defendant’s explanation for leaving the property looking derelict was understandable as a security measure. The Court held that it still undermined the openness requirement. The law demands visibility, not discretion.

3. Holding out consent undermines hostility and intention
   The Defendant and her family repeatedly conveyed that they were there with permission. The Court treated that as inconsistent with an intention to possess as against the true owner.

4. Objective documentary materials can outweigh sincere witness recollections
   The Court preferred evidence corroborated by photographs and invoices over accounts that may have been honestly mistaken about time and detail. This reinforces a forensic lesson: in long-running factual disputes, objective contemporaneous documents are often decisive.

5. Tactical acts after litigation begins can backfire
   Rates paid after proceedings commenced might have been intended to strengthen the Defendant’s claim. Because it was done through impersonation, it became a credibility disaster and supported the inference of tactical manipulation.

Legal Basis: the statutory and doctrinal framework applied

1. Limitation Act 1969 (NSW), ss 27 and 28

– Section 27 establishes a twelve-year limitation period for actions to recover land brought by persons other than the Crown.
– Section 28 directs that, where an entitled person is dispossessed or discontinues possession, the cause of action accrues on the date of dispossession or discontinuance.

1. Limitation Act 1969 (NSW), s 38 (adverse possession and postponed accrual)
   The judgment treated s 38 as relevant because, if land is not in adverse possession, accrual can be postponed until it is first in adverse possession. The Court’s conclusion that the land was not in adverse possession in the required sense meant the limitation period did not begin when the Defendant asserted.

2. Real Property Act 1900 (NSW), s 45C
   The Defendant’s cross-claim was framed as necessary to overcome the statutory protection of registered title, reflecting that adverse possession is a pathway, but a narrow one, in a Torrens title system.

3. Common law principles: physical possession and animus possidendi
   The Court applied the orthodox two-element test: physical possession and intention to possess, with the additional requirement that possession be peaceful, open, and not by consent.

Evidence Chain: Conclusion = Evidence + Statutory Provisions

Victory Point 1: Define the land by its function, then test possession against that function
– Evidence: the property was a residence; evidence showed use largely as storage and occasional study until much later.
– Law: physical possession requires an appropriate degree of physical control depending on nature of the land and how it is commonly used and enjoyed.
– Conclusion: storage use was not possession in the nature of a residence, so adverse possession was not made out.

Victory Point 2: Demonstrate concealment to defeat openness
– Evidence: broken front window left unrepaired; property presented as derelict; occupation not apparent to outsiders.
– Law: possession must be open and manifest so that a reasonably careful owner could discover dispossession.
– Conclusion: concealment prevented the limitation clock from running based on adverse possession.

Victory Point 3: Use the opponent’s “permission” narrative as a legal self-sabotage
– Evidence: statements to enquirers and communications suggesting permission, keys given, “aunt” authorised occupation, and threats of legal action against an agent for trespass framed as if the occupier had rights sourced in authority.
– Law: adverse possession must be hostile to the true owner’s title; seeking or relying on consent destroys animus possidendi and negates nec precario.
– Conclusion: the Defendant’s posture was inconsistent with adverse possession.

Victory Point 4: Anchor the timeline with contemporaneous objective materials
– Evidence: photographs in March 2011 showing squatter-like condition; maintenance invoice dated 28 March 2011 for rubbish removal and repairs organised by the agent.
– Law: adverse possession requires clear proof of when possession began, its nature, and whether it was open and undisturbed.
– Conclusion: objective materials undermined the Defendant’s claimed state of the property and supported the Plaintiff’s continuing control through an agent.

Victory Point 5: Preserve evidence of continuing owner control to defeat “discontinuance”
– Evidence: the agent remained engaged until 2014; rates and management functions were conducted through that engagement.
– Law: the cause of action accrues upon dispossession or discontinuance; the slightest acts of an owner can negative discontinuance, whereas a trespasser must prove clear dispossession.
– Conclusion: the Plaintiff’s continuing control reduced the plausibility of an early accrual date.

Victory Point 6: Turn post-commencement conduct into credibility demolition
– Evidence: the Defendant paid outstanding rates after proceedings began by impersonating the Plaintiff.
– Law: adverse possession requires clear, affirmative evidence; credibility matters, and dishonest conduct can support inferences of opportunism and fabrication.
– Conclusion: the rates incident did not strengthen possession; it damaged credibility and suggested a litigation-driven attempt to create supportive facts.

Victory Point 7: Neutralise friendly witness evidence by focusing on forensic reliability
– Evidence: friends and family described furniture storage and a “base”, but with uncertainty as to dates and limited external corroboration.
– Law: the onus remains on the adverse possessor; where evidence is capable of multiple interpretations, courts will treat the claimant as failing to show animus possidendi.
– Conclusion: even if witnesses were sincere, their evidence did not meet the clarity demanded by adverse possession doctrine.

Victory Point 8: Win by narrowing the case to one fatal element rather than every disputed detail
– Evidence: even accepting some level of control from about 2011, the possession was not of the required type and was not open.
– Law: failure on any essential element defeats adverse possession, and therefore defeats the limitation defence dependent on adverse possession.
– Conclusion: the Plaintiff did not need to disprove every asserted act; it was enough to show the legal test was not satisfied.

Judicial Original Quotation: classic dicta applied and why it was determinative

“In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world.”

This was determinative because the Defendant’s conduct was not clear to the world. It was capable of being interpreted as caretaking, sporadic use, or consent-based occupation. The Court applied the principle that ambiguity is resolved against the adverse possessor.

“The defendant’s holding out that she, or Chantal, had permission to occupy No 5 was contrary to the requirement for open possession. It was also possession continued by stealth.”

This mattered because it identified the legal poison: if you tell the world you are there with permission, you are not publicly asserting a hostile title. You are avoiding conflict, but you are also undermining the legal foundation of adverse possession.

“I am therefore not satisfied that the possession of No 5 was adverse in the required sense.”

This concluding statement crystallised the judgment: once adverse possession failed, the limitation defence collapsed, and the registered proprietor’s claim for possession succeeded.

Analysis of the Losing Party’s Failure

The Defendant failed for structural reasons rather than a single missing document:

1. Misunderstanding the legal meaning of possession for a residence
   The Defendant acted as if control and use equalled possession. The Court required possession consistent with residential occupation, not storage.

2. Choosing concealment over visibility
   The Defendant tried to avoid intruders by keeping the house looking derelict. That choice undermined the openness requirement.

3. Adopting a permission narrative that destroyed hostility
   The Defendant’s repeated implication of permission, and attempts to “regularise” occupation by contacting the owner, sat uneasily with an intention to possess against the true owner.

4. Taking steps that undermined credibility
   The rates impersonation episode suggested a willingness to misrepresent facts when advantageous, damaging the trustworthiness of the Defendant’s overall narrative.

5. Insufficiently corroborated continuity
   Long-running adverse possession claims demand a clear start date, consistent conduct, and objective markers. The Defendant’s evidence, even if sincere in parts, did not meet the strictness of the test.

Implications

1. The law does not reward secrecy in property disputes
   If you occupy quietly and try not to be noticed, you may feel you are “keeping out of trouble”. But adverse possession depends on being visible enough that an owner could reasonably discover your claim. If your occupation is hidden, your legal position tends to be weak.

2. A house is not a shed
   Using a residence like a storage unit may feel like practical use, but courts often assess possession through the lens of how that kind of property is ordinarily lived in. If you are not living there in a genuine residential way, your claim tends to face a relatively high risk.

3. Words can be more damaging than locks
   You can change locks and carry furniture for years, but if you tell people you are there with the owner’s permission, you may be undoing your own case. Adverse possession is a claim of hostility, not a claim of permission.

4. Objective documents are the quiet winners
   Old photographs, invoices, agent records, and rate notices can defeat confident oral stories. If you are in litigation, treat documents as your most trustworthy witnesses.

5. Litigation choices can shape outcomes as much as facts
   Paying rates after proceedings start, trying to “tidy up” your narrative, or creating new acts of control can look strategic. When a court senses tactical behaviour, it may weigh evidence against you. Choose integrity over improvisation.

Q&A Session

Q1: If the owner never visits the property, does that mean an occupier automatically wins after twelve years?
A1: No. The limitation period in land recovery cases depends on when a cause of action accrues, which often requires adverse possession. Non-use by an owner does not automatically transfer title. The occupier must show adverse possession that is open, continuous, and hostile to the owner’s title over the statutory period.

Q2: Is paying rates enough to prove adverse possession?
A2: Paying rates can sometimes support an inference of ownership-like behaviour, but it is rarely decisive alone. Courts look at the total picture: physical possession, intention to possess, openness, and whether conduct is consistent over time. If rates are paid in a way that suggests dishonesty or tactical manipulation, it can harm rather than help.

Q3: If someone genuinely improves a derelict property, can they claim compensation if they lose?
A3: It depends on pleadings and legal basis. A person might consider alternative claims such as restitutionary relief, unjust enrichment, or equitable compensation in appropriate circumstances. However, those claims require proper pleading and proof. Where no alternative demand is made, the Court may not grant such relief.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Land Law – Adverse Possession and Limitation Defence in Residential Property Possession Proceedings (NSW)
Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

[Execution Instruction]

Based on the case type, the corresponding core legal test standards are displayed one by one. Each step is provided for reference only. Outcomes tend to depend on the particular evidence and statutory context.

⑤ Property, Construction and Planning Law

Core Test (Statutory Warranties)

Was the work performed in a proper and workmanlike manner? Were the materials supplied good and suitable for the purpose?

Practical application guidance (general, not absolute):
1. Identify the legal source of the warranty obligations in the relevant jurisdiction and contract setting.
2. Establish the scope of “work” and whether it falls within the statutory scheme.
3. Gather contemporaneous evidence: quotes, invoices, photographs before and after, expert reports, inspection notes, correspondence about defects.
4. Compare the actual work to accepted industry standards and the intended use of the property.
5. Assess causation: whether the alleged breach of warranty caused the loss or the defect.
6. Consider notice requirements and limitation periods that may apply to warranty claims.
7. Consider whether rectification is feasible and proportionate.
8. Consider whether contributory conduct by the owner affects remedies.

Core Test (Defects)

Is it a Major Defect (6-year statutory warranty) or a Minor Defect (2-year statutory warranty)? Does the defect render the building uninhabitable or cause the destruction of the building?

Practical application guidance (general, not absolute):
1. Define the defect precisely, with location, manifestation, and impact.
2. Determine whether the defect affects structural performance, waterproofing, fire safety, or other core safety and habitability functions.
3. Identify whether the defect tends to render the building uninhabitable or threatens serious damage.
4. Establish timing: when it was discovered, when it likely emerged, and whether it was latent.
5. Map the defect to the appropriate limitation window, noting that classification disputes often drive litigation risk.
6. Obtain expert evidence early, because “major” versus “minor” often turns on technical assessment.
7. Track remedial history: temporary fixes can mask seriousness but also show knowledge and timing.

Core Test (Planning)

Have the conditions of the Development Application (DA) or Complying Development Certificate (CDC) been breached?

Practical application guidance (general, not absolute):
1. Identify the approval instrument (DA, CDC, or other) and all attached conditions.
2. Determine what condition is alleged to be breached and the factual basis for breach.
3. Establish the evidence trail: plans, inspection reports, correspondence with council, builder certifications.
4. Assess whether breach is substantive or technical and what enforcement pathway applies.
5. Consider whether rectification or modification approval is available.
6. Consider whether third-party rights or neighbour complaints affect enforcement intensity.
7. Consider time and cost exposure, noting planning disputes often turn on compliance evidence.

3. Equitable Remedies and Alternative Claims

[Execution Instruction]

The analysis below identifies whether the parties can utilise principles of Equity or other doctrines to pursue alternative pathways when statutory avenues are limited. This is detailed, but non-absolute.

Because this dispute concerns land possession and improvements, the most relevant alternative concepts tend to be proprietary estoppel, unjust enrichment, and constructive trust, depending on facts.

Promissory / Proprietary Estoppel

Did the other party make a clear and unequivocal promise or representation (for example, “this property will be yours”)?

• In an adverse possession setting, estoppel tends to require a representation attributable to the true owner or someone with authority.
• If an occupier cannot prove a clear promise, estoppel tends to be determined against the occupier.

Did you act in detrimental reliance on that promise (for example, renovating the property, resigning from a job)?

• Detriment must be substantial and causally linked to the promise.
• Mere improvement without a proven promise tends to carry a relatively high risk.

Would it be unconscionable for the other party to resile from that promise?

• Unconscionability is the evaluative heart of estoppel.
• Courts tend to scrutinise whether the occupier acted reasonably and whether the owner encouraged reliance.

Result Reference: Even without a written contract, Equity may estop the other party from going back on their word, but only where the promise and reliance are clearly proven.

Unjust Enrichment / Constructive Trust

Has the other party received a benefit (money or labour) at your expense? Is it against conscience for them to retain that benefit without payment?

• In land disputes, a key question is whether the owner was enriched in circumstances where retention would be unjust.
• If improvements were made without the owner’s knowledge, courts may still consider restitution, but risk increases where the occupier was a trespasser.

Result Reference: The Court may order restitution of the benefit or declare a beneficial interest via constructive trust, but such outcomes tend to require clear evidence of contribution and the inequity of denial.

Practical linkage to this case type:
– If an occupier improves a property but fails on adverse possession, an alternative pleading seeking equitable compensation or restitution may be considered.
– Where no such alternative claim is pleaded, relief tends not to be awarded as a matter of course.

4. Access Thresholds and Exceptional Circumstances

[Execution Instruction]

This section reveals hard thresholds and exceptional channels relevant to this case type.

Regular Thresholds

• Limitation period for a person other than the Crown to recover land in NSW: twelve years, running from accrual under ss 27 and 28 of the Limitation Act 1969 (NSW), in the context of dispossession or discontinuance.
• Adverse possession must be established before the limitation period can effectively run in favour of the occupier, consistent with the statutory structure and the meaning of adverse possession in the Act.
• Adverse possession requires physical possession and intention to possess, and must be peaceful, open, and not by consent.

Exceptional Channels (Crucial)

• If land is not in adverse possession, accrual may be postponed until the first date it becomes adversely possessed, consistent with the statutory scheme. This can defeat a limitation defence where occupation is ambiguous or not open.
• Owner acts that show continuing control, even if modest, can negative discontinuance and delay accrual.
• If an occupier’s conduct is consistent with permission, the occupation may not be adverse, preventing limitation time from running.

Suggestion: Do not abandon a potential claim simply because you assume time has passed. Carefully test whether adverse possession truly existed in the legal sense. Many apparent “long occupations” fail because they were not open, not hostile, or not possession of the right quality for the land.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or debates involving:

• Whether storage and intermittent use of a residence can satisfy physical possession for adverse possession.
• The meaning of “open and manifest” possession and the requirement that intention be clear to the world.
• The effect of holding out permission on animus possidendi and adverse possession.
• How documentary materials and agent involvement affect findings on discontinuance and accrual.

Citation Method

As Positive Support:
– When your matter involves residential land and the alleged occupier did not use the premises as a residence in the ordinary sense, this authority can strengthen an argument that physical possession is not established.
– When your matter involves concealed occupation or ambiguous conduct, this authority can support the submission that adverse possession requires openness and clarity.

As a Distinguishing Reference:
– If the opposing party cites this case, you should emphasise factual differences such as clear residential occupation, visible control, unequivocal exclusion of the owner, and absence of statements implying permission.

Anonymisation Rule: In discussion and explanatory materials, avoid real party names and use Plaintiff / Defendant or other correct procedural titles.

Conclusion

This case shows that adverse possession is not a reward for quiet caretaking; it is a strict legal doctrine requiring possession that is real, residentially meaningful, and unmistakably open to the world, coupled with an intention to exclude the true owner as far as the law allows.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales (Willis v Abraham (No 2) [2025] NSWSC 276), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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