Rural Boundary Adverse Possession Dispute: When decades of fencing and “country use” are not enough to take Torrens land beyond a house, its curtilage, and a proven access way :contentReference[oaicite:0]{index=0}

Based on the authentic Australian judicial case Evans v Smith [2025] NSWCA 102, 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. :contentReference[oaicite:1]{index=1}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Court of Appeal, Supreme Court of New South Wales :contentReference[oaicite:2]{index=2}

Presiding Judge: Ward P and Stern JA; Adamson JA :contentReference[oaicite:3]{index=3}

Cause of Action: Land law — adverse possession; scope of curtilage and relief on appeal :contentReference[oaicite:4]{index=4}

Judgment Date: 16 May 2025 :contentReference[oaicite:5]{index=5}

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Adverse possession

Keyword 3: Continuous exclusive possession

Keyword 4: Intention to possess

Keyword 5: Curtilage

Keyword 6: Onus of proof and evidentiary gaps

Background (No Outcome Spoilers)

This dispute arose from neighbouring rural holdings on the Central Coast of New South Wales. The Appellants held registered title to a parcel identified as Lot 41 in a deposited plan. The First Respondent lived in a long-standing residence near Brush Creek Road and asserted that, over many decades, he and his predecessors had treated a larger portion of Lot 41 as if it were part of the First Respondent’s “mill property”. The contested land sat between what was described as an “Unformed Road” and the formed road (Brush Creek Road), with fences, old tracks, and rural patterns of use forming the practical backdrop. The litigation forced the Court to decide what, in law, must be proven to convert long occupation and local understandings into legal title, and how precisely any resulting declaration should be framed. :contentReference[oaicite:6]{index=6}

Core Disputes and Claims

Core Legal Focus of the Dispute:

1. Whether the First Respondent (and predecessors) established adverse possession of the contentious portion of Lot 41 for the requisite period, meaning continuous factual possession that was exclusive, and an intention to possess to the exclusion of the world at large.

2. If adverse possession was made out only in part, what is the proper extent of declaratory relief — specifically, whether any declaration should extend beyond the house and its curtilage, and whether it should include an access corridor connecting the residence to the Unformed Road.

Respective Positions (Procedural Titles Only):

• Appellants’ position: The First Respondent could not prove continuous exclusive possession of the bulk of the contentious land for the full period; at most, adverse possession could be accepted for the residence and a limited curtilage. They contended that the evidence contained substantial gaps and that possession of one part does not automatically prove possession of the whole.

• First Respondent’s position: The historical use, fences, rural occupation patterns, and long-standing treatment of the area as part of the First Respondent’s property showed both factual possession and intention to possess, justifying a declaration over a broader portion of the contentious land.

• Second Respondent’s role: The Registrar-General appeared in a submitting capacity (procedural participation without pressing substantive contest on the merits).

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Chapter 2: Origin of the Case

This case reads like a familiar rural story until the law turns it into a forensic accounting of decades.

The First Respondent’s side of the fence: a modest residence, longstanding family occupation, and a sawmilling history that shaped how land was used and how access routes were practically formed. The Appellants’ side: registered title to Lot 41, apparently acquired without any day-to-day sense that the First Respondent’s house sat on their land.

The decisive moment was not a dramatic confrontation at a boundary peg. It was a modern administrative trigger. In mid-2022, in the context of a local government road upgrade project, the Appellants were informed that the First Respondent’s residence was located on land registered to them. That disclosure converted a long-standing “everyone knows where the boundary is” rural assumption into an acute legal dispute. :contentReference[oaicite:7]{index=7}

From there, the conflict followed a predictable escalation:

• A title-based problem was identified.

• The First Respondent asserted a possessory right (effectively: “we have treated this as ours for decades”).

• Litigation was commenced seeking declarations of title by adverse possession and related relief.

• The Appellants acknowledged a limited concession: they accepted adverse possession of the residence area and a curtilage. But they resisted the larger claim over the balance of the fenced and mapped contentious land. :contentReference[oaicite:8]{index=8}

In real life terms, the deterioration of the relationship was driven by the collision between two systems:

• The practical system: fences, tracks, use, and community assumptions.

• The legal system: registered title, strict elements of adverse possession, and a requirement that courts do not “fill in the gaps” with rural common sense.

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Chapter 3: Key Evidence and Core Disputes

This was an evidence-heavy land case, but not because there was too much evidence. The core problem, on appeal, was how little evidence existed about what happened across the bulk of the contested area for long stretches of the required time.

Applicant’s Main Evidence and Arguments (First Respondent at first instance)

Key evidence themes relied upon:

1. Long occupation of the residence (the house near Brush Creek Road), including historical family presence from the late 1940s onwards.

2. Fences: evidence that boundary fencing existed and was maintained or repaired from time to time, with fencing said to demarcate occupation and exclude others.

3. Rural use patterns: paddocking of a small number of animals (two dairy cows and some horses), maintenance activities, and “country living” uses consistent with surrounding a home and a mill.

4. Sawmill context: the existence of a mill site and an asserted practical link between the residence and mill operations, said to support an inference of access use across the contentious land.

5. Documentary and photographic material: including plans (survey plans, aerial photographs) used to show the shape of the land and possible access routes.

Strategic argument:

• That a “composite picture” of fences, long occupation, and consistent treatment of the area as part of the First Respondent’s holding established adverse possession across the larger tract, not merely the house.

Respondent’s Main Evidence and Arguments (Appellants at first instance; Appellants on appeal)

Key evidence criticisms:

1. Evidentiary gaps: there was said to be no evidence of use across large parts of the relevant area for substantial periods, including stretches from 1949 to 1963.

2. Over-reliance on fencing: fencing may be significant, but without evidence of use across the bulk of the land, fences cannot do all the work. The Appellants argued there was no clear evidence why fences were erected initially and that later maintenance could reflect animal management rather than assertion of ownership.

3. “House proves house” problem: proof of possession of the residence and its immediate surroundings does not prove possession of the entire larger polygon drawn on a plan.

4. Intention evidence: the Appellants argued that there was no outward manifestation showing a continuing intention to possess the entire contentious land to the exclusion of the world at large, especially given the limited evidence of acts across the broader area.

5. Relief scope: even if some possession is proven, the declaration should not expand into access corridors or larger areas unless the First Respondent proved actual possession and intention for those precise parts.

Core Dispute Points

1. Continuous exclusive factual possession: Was there evidence of what was done, where, and for how long, across each part of the contentious land?

2. Intention to possess: Did the proved acts manifest an intention to exclude the world at large across the claimed area?

3. Curtilage boundaries: What land is properly characterised as serving the purpose of the residence, and does that include a practical access path to the Unformed Road?

4. Onus of proof: How should the Court approach missing evidence, and when does the Court refuse to speculate?

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Chapter 4: Statements in Affidavits

Affidavits in land possession cases are often “memory under oath” — the legal system’s attempt to turn lived history into admissible facts.

In this case, the affidavit strategy (as reflected in the appellate discussion of the evidentiary record) can be understood as a contest between two narrative styles:

• The First Respondent’s style: a long-form historical account — family occupation, rural activities, fencing practices, and an implicit assumption that the fenced land was “ours”.

• The Appellants’ style (on appeal): a forensic disassembly — itemise each alleged act and ask: when did it occur, where on the map did it occur, and does it cover the required decades for the whole area?

A central affidavit tension is how the same rural fact can be framed in opposite legal ways:

Example: “There were boundary fences, and animals were kept in.”

• Possession framing: fences are objective acts that signify occupation and exclusion.

• Neutral framing: fences can be functional animal control and do not automatically prove control of every square metre inside, especially where the evidence of use is thin.

Strategic intent behind procedural directions regarding affidavits:

The Court’s insistence on precision in land cases means affidavits must do more than tell a coherent life story. They must allocate acts to time, place, and purpose. When a party claims a large area by adverse possession, the affidavit burden increases because the Court must avoid unjustly depriving a registered owner of title by inference alone. This is why, on appeal, the discussion repeatedly returns to what was proven about the “bulk” of the contentious land, not merely the residence. :contentReference[oaicite:9]{index=9}

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Chapter 5: Court Orders (Pre-Hearing Directions and Procedural Arrangements)

Prior to final hearing and appeal resolution, the procedural architecture of this case included:

1. Pleadings that framed a claim for declaratory relief based on adverse possession, with alternative claims also foreshadowed (including equitable pathways, even if not ultimately pursued to finality in the way initially pleaded).

2. A contested mapping exercise: survey plans, aerial photographs, and labelled sub-areas of land were used to identify precisely what was claimed and what was conceded.

3. Concessions and offers shaping the disputed perimeter: an open offer dated 23 May 2024 formed a practical baseline for the conceded curtilage, later becoming central to the appellate debate about the proper shape of relief.

4. A first instance hearing (Real Property List) and judgment, followed by an appeal challenging both the factual findings and the ultimate declaration.

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

This was not a dramatic witness-credibility case in the usual sense. It was a “map, time, and proof” case.

The critical conflict at hearing was not whether the First Respondent’s family had lived in the house. That was essentially accepted. The conflict was whether the First Respondent proved the legal elements for the larger remainder of the contentious land over the full requisite period.

Process Reconstruction: Live Restoration

The contest unfolded in a predictable litigation rhythm:

1. Establish the concession: the Appellants accepted adverse possession for the residence and a curtilage.

2. Define the battlefield: everything beyond that conceded zone.

3. Attack the continuity: the Appellants pressed evidentiary gaps, particularly in early decades, and argued that a patchwork of occasional uses does not equal continuous exclusive possession.

4. Attack the spatial claim: even if fences existed, what acts showed control over the bulk of the area, as distinct from the area near the house?

5. Test the inference chain: the First Respondent sought the Court to draw inferences from fences, rural practice, and photographs; the Appellants resisted speculation.

Core Evidence Confrontation

Two evidentiary confrontations became determinative:

1. The “bulk land” problem:
   Ward P and Stern JA identified a practical and legal difficulty: there was little or no evidence about the use of the bulk of the contentious land over the whole of the required period, beyond limited acts such as fence maintenance and a shed’s construction/removal. :contentReference[oaicite:10]{index=10}

2. The “access way” question:
   Even if the bulk claim failed, did the curtilage logically and legally include a narrow access way to the Unformed Road given the residence’s relationship to the mill site and historical access realities?

Judicial Reasoning (with Judicial Original Quotation Principle)

Context: The majority’s central move was to separate what was clearly proven (residence, immediate surrounds, and a functional access link) from what was not proven (the remainder of the claimed land), while explaining why fences and rural assumptions could not substitute for evidence across the whole area.

“There is little or no evidence as to use of the bulk of the contentious land over the whole of the requisite period …” :contentReference[oaicite:11]{index=11}

Why this was determinative:

This statement is not merely commentary; it is the ratio-driving factual assessment that breaks the adverse possession claim for the broader area. Adverse possession is proved by acts, not by labels on a plan. Where the claim extends beyond the house and immediate functioning surrounds, the Court required proof of use, control, and exclusion across that larger space for the full period. The majority held that the evidence did not reach that standard.

Context: The second key reasoning move concerned curtilage. The Court treated curtilage not as a sterile measurement, but as land serving the purpose of a dwelling in its historical setting.

“It is inconsistent with the concept of curtilage … to confine the curtilage … to an area that does not permit ready access between the … house and the Unformed Road …” :contentReference[oaicite:12]{index=12}

Why this was determinative:

The majority accepted that curtilage must be functional. On their reasoning, a dwelling in this setting could not sensibly be treated as having curtilage that prevented practical access to the Unformed Road linked with the property’s historical usage. The Court therefore framed relief around the conceded plan area, extended by a narrow access corridor.

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Chapter 7: Final Judgment of the Court

The appeal was allowed.

Core orders (summarised):

1. The appeal was allowed.

2. Certain first instance orders were set aside.

3. In lieu, the Court declared that the First Respondent is the rightful owner of so much of the land in Lot 41 as contains the residence and its curtilage, with the curtilage extended to accommodate vehicular and pedestrian access from the First Respondent’s land to the Unformed Road.

4. The First Respondent was ordered to pay the Appellants’ costs at first instance on the ordinary basis.

5. The First Respondent was ordered to pay the Appellants’ costs of the appeal on the ordinary basis. :contentReference[oaicite:13]{index=13}

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

This chapter follows the mandated order:
(Special Analysis → Judgment Points → Legal Basis → Evidence Chain → Judicial Original Quotation → Analysis of the Losing Party’s Failure)

Special Analysis

This judgment is a practical warning against “map inflation” in adverse possession claims.

Adverse possession is often misunderstood as a moral doctrine: “We have treated it as ours for decades, therefore it becomes ours.” The Court’s approach shows it is, instead, an evidentiary doctrine: “Prove, with sufficient clarity, what you actually did, where you did it, and that you did it continuously and exclusively, with the necessary intention.”

The majority’s reasoning also shows a calibrated respect for rural reality without allowing rural assumption to become legal speculation. Fences matter; so does common sense. But common sense must operate within the structure of proof. The Court insisted on evidence of use across the bulk of the land, not merely the existence of a boundary fence enclosing a large tract.

A further jurisprudential value is the Court’s functional treatment of curtilage. In a rural setting, curtilage may be shaped by access realities, not merely by a small perimeter around a dwelling.

Judgment Points

1. Possession must be shown for the land claimed, not merely for a landmark on it.

The Court treated the residence as a proven anchor point. But it refused to let that anchor pull a whole tract into possession without evidence that the tract itself was continuously and exclusively controlled.

Practical translation:

Owning the story of the house does not mean you own the story of the paddock.

1. “No evidence of use of the bulk” is not a minor evidentiary weakness; it is a fatal structural gap.

The Court’s repeated emphasis on the lack of evidence for the bulk of the contentious land shows that adverse possession is not satisfied by occasional use, fence repair, or an assumption of “country boundaries”.

This point matters because many adverse possession claims collapse not due to dishonesty, but due to the absence of precise evidence across time.

1. Fences are powerful evidence, but they do not do all evidentiary work alone.

The majority acknowledged fences as significant objective acts. They also rejected an argument that the absence of evidence about the original erection of fences was automatically fatal. But they still held that fences, without proof of use across the broader area, were insufficient to prove the entire claim.

In practice:

A boundary fence may support intention to possess, but factual possession still requires proof of control and use, especially for large areas.

1. The Court applied a disciplined inference method: it drew only those inferences grounded in evidence and context.

The Court’s acceptance of some inferences (such as the existence of an access way) did not open the door to speculative expansion into the entire bulk land claim. It shows that inference is not an all-or-nothing tool. Courts can infer what is likely, but they will not infer what would be convenient.

1. Curtilage is functional, and the Court may extend it to accommodate real access needs.

This is a legally important point. The Court treated curtilage as land serving the dwelling’s purpose. In a setting where the Unformed Road functioned as a practical connection to the First Respondent’s adjoining land (and historically to the mill), it was inconsistent with curtilage to fence the dwelling into an “island” without access.

1. Relief is not merely about who wins; it is about drawing a declaration the evidence can carry.

The judgment demonstrates that, even where a party succeeds in part, the Court will frame relief carefully to match the proven elements. This is why the majority adopted the open offer plan area as a foundation and adjusted it only to the extent justified by the curtilage concept and access logic. :contentReference[oaicite:14]{index=14}

1. Onus of proof remains with the claimant; the Court will not fill gaps with sympathy or speculation.

Adamson JA’s reasons (agreeing as to allowing the appeal but differing as to relief) underscore a strict position: the claimant must prove actual possession and intention for any claimed access land, and the Court is not to speculate how access was obtained.

1. The dissent highlights the boundary between “reasonable inference” and “impermissible conjecture”, especially when relying on photographs.

Adamson JA cautioned against inferring access routes from photographs and insisted on stronger proof, including noting the application of Jones v Dunkel reasoning when a witness could have been expected to give evidence on access. This sharpened the evidentiary standard discussion and provides practitioners with a powerful template for resisting over-extended relief claims.

Legal Basis

Statutory and doctrinal materials referenced in the appeal record include:

• Real Property Act 1900 (NSW): provisions relevant to the status of registered title and the correction/interaction of Register interests in the context of the first instance reasoning and grounds of appeal.

• The adverse possession doctrine as applied in NSW land law, requiring proof of continuous factual possession and intention to possess (animus possidendi) for the required period.

Key cited authorities and principles appearing in the appeal discussion included:

• Powell v McFarlane (1977) 38 P & CR 452; [1977] LS Gaz R 417, for the requirement that intention be manifested by objective acts and for the need for clear evidence given the drastic effect of extinguishing title.

• Ben-Pelech v Royle [2020] WASCA 168, illustrating that possession of part does not necessarily entail possession of the whole.

• Cooke v Dunn (1998) 9 BPR 16,489, cited on the standard articulation of the two-part test (factual possession and intention).

• Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, as applied by Adamson JA in considering missing evidence and the inferences available where a witness could have been expected to address a point.

• Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 and other authorities, referenced in relation to curtilage reasoning. :contentReference[oaicite:15]{index=15}

Evidence Chain

The majority’s “Conclusion = Evidence + Legal Requirements” chain can be disassembled into decisive links:

1. Concession and proof: Residence and curtilage were accepted/proved.

2. Claimed extension: The First Respondent sought the bulk land.

3. Evidence scrutiny: The record showed limited acts beyond the residence area, such as:

• Some boundary fence maintenance and repairs.

• A shed’s construction and later removal.

• Occasional animal paddocking.

1. Gap detection: Little or no evidence of continuous exclusive use across the bulk of the land for the entire period.

2. Doctrinal filter: Adverse possession requires clear evidence of factual possession and intention for the land claimed.

3. Outcome: The bulk claim failed; the relief was confined to what could be supported — residence, curtilage, and (for the majority) a narrow access way to the Unformed Road. :contentReference[oaicite:16]{index=16}

Judicial Original Quotation

Context: The Court’s sharpest evidentiary finding (majority) was that, outside the house and its immediate functional surrounds, the record did not prove what the claimant needed to prove.

“There is little or no evidence as to use of the bulk of the contentious land over the whole of the requisite period …” :contentReference[oaicite:17]{index=17}

Immediate analysis:

This was the pivot point. Once the Court framed the claim as “prove the bulk”, the absence of evidence became decisive. The Court’s method shows that adverse possession is not a doctrine of general rural entitlement; it is a doctrine of proved acts and proved intention over proved land.

Context: Adamson JA’s warning about speculation and onus of proof went to the relief question and, more broadly, to how courts should resist being pushed into constructing unproven access routes.

“It is not for this Court to speculate as to how access was obtained …” :contentReference[oaicite:18]{index=18}

Immediate analysis:

This crystallises a litigation reality: when a claimant seeks a declaration that includes an access corridor, the corridor is not a “practical necessity” the Court can simply assume. It is a discrete parcel of land requiring discrete proof of possession and intention.

Analysis of the Losing Party’s Failure

The failure was not about credibility in the ordinary sense. It was structural.

1. Over-breadth of claim:

By seeking a declaration over the bulk of the contentious land, the claimant assumed that long occupation of the house and boundary fences would “carry” the claim across a large area.

1. Insufficient spatial allocation of acts:

Even accepting fence evidence and some rural use, the record did not show continuous exclusive possession over the entire bulk for the whole period.

1. Time-gap vulnerability:

The Appellants’ argument about early period gaps exposed an evidentiary weakness typical of intergenerational claims: memory and documentation do not always support precise proof across decades.

1. Reliance on inference where the Court required proof:

The claimant’s approach leaned on the Court drawing an expansive inference from fences, rural context, and photographs. The Court refused to let inference become conjecture, especially for large land areas.

1. Relief misalignment:

Even where curtilage and access are practically intertwined, a party seeking an expanded declaration must ensure the relief matches the proven evidentiary footprint. The dissent’s approach is a stark example of how relief can be restricted where proof is not precise.

Implications

1. Treat adverse possession as a proof exercise, not a fairness argument.

If you believe you have a possessory claim, your success will tend to depend on the quality of your evidence: dates, acts, maps, and proof of exclusion. A sincere belief or community assumption is not enough on its own.

1. If your claim is bigger than your evidence, your risk tends to be higher.

A narrower, well-supported claim can succeed where an expansive claim fails. Aim for relief that fits the evidence rather than asking the Court to “round up” your boundaries to match a narrative.

1. Fences help, but they are not a substitute for proof of use across the land.

A fence is an important signal. But courts still look for demonstrated control and use. Maintain records, photographs with dates, and third-party corroboration that ties acts to parts of the land.

1. Curtilage is about function. Think like the Court: what land serves the dwelling’s purpose?

Curtilage is not merely a yard. In rural settings, functional access may form part of the dwelling’s curtilage in a way that makes practical sense and legal sense, if supported by evidence.

1. Do not let the Court do your evidentiary job.

Courts are cautious about speculation in adverse possession cases because the consequence is the extinction of registered title. If a point matters, it must be proved. Your case tends to be stronger when you anticipate the judge’s refusal to guess.

Q&A Session

Q1: If everyone locally believed the boundary was “where the fence is”, why is that not enough?

Because adverse possession is not determined by belief alone. The Court requires proof of continuous exclusive factual possession and intention to possess for the required period for the land claimed. Local belief may support context, but it does not replace proof of acts and control.

Q2: Why did the Court accept the residence and curtilage but reject the bulk land claim?

Because the evidence clearly supported possession of the residence area, but there was little or no evidence of use and control across the bulk of the contentious land over the whole required period. Possession of part does not automatically establish possession of the whole.

Q3: How can an access way become part of curtilage?

Curtilage is land serving the purpose of a dwelling. In a rural context, a narrow access corridor connecting the residence to an adjoining road or functional route may be treated as part of curtilage where it is necessary for the dwelling’s practical use and is supported by evidence and proper legal reasoning.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Property boundary dispute — adverse possession claim over Torrens land with contested curtilage and access relief

Judgment Nature Definition: Final appellate judgment (allowing appeal and substituting declaratory relief)

2. Self-examination of Core Statutory Elements

Execution Instruction: Based on the case type, display the corresponding core legal test standards one by one. Each step must be written in great detail, with complete references, leaving no legal loopholes, and must be rigorous. These are for reference only; outcomes depend on facts and evidence.

Category Selected: ⑤ Property, Construction and Planning Law (Property — adverse possession and boundary title correction context)

Core Test Standards (Adverse Possession — Property Context):

Step 1: Identify the exact land claimed with precision

• Define the land by reference to a survey plan, deposited plan identifiers, and physical features.
• Break the claim into notional parts if different acts of possession apply to different areas.
• Risk note: An overly broad polygon claim tends to carry a relatively higher risk if the evidence is strong only near a dwelling and weak elsewhere.

Step 2: Prove continuous factual possession for the required period

• Continuous means the possession must persist for the whole statutory period; it can be aggregated across predecessors in title where the law permits tacking.
• Factual possession requires an appropriate degree of exclusive physical control.
• Evidence commonly relied upon:
  • Enclosure (fencing), but supported by proof of how the enclosed land was actually controlled.
  • Use and maintenance: mowing, clearing, improvements, exclusion of others, agricultural use, access tracks, storage, structures.
  • Repairs and improvements to boundary markers and infrastructure.
• Risk note: Where evidence shows only sporadic or incidental use, courts tend to treat the risk as relatively high that continuity will not be made out for the whole land claimed.

Step 3: Prove intention to possess (animus possidendi)

• The intention must be unequivocal and manifested by objective acts.
• The intention is to possess the land to the exclusion of the world at large, not merely to use it occasionally.
• Common indicators:
  • Treating the land as part of one’s own property in a way visible to others (exclusive control, maintenance, improvements).
  • Denying or regulating access by others (permission given, gates locked where appropriate, signage, exclusion).
• Risk note: Where a claimant relies heavily on subjective belief but cannot point to objective acts across the claimed land, intention tends to be difficult to establish.

Step 4: Prove exclusivity (no shared possession with paper title owner)

• Exclusive possession does not require constant physical presence, but requires control inconsistent with the true owner’s possession.
• If the paper title owner uses the land as of right, exclusivity becomes harder to prove.
• If others use the land only with the claimant’s permission, that can support exclusivity.

Step 5: Link each evidentiary act to time and place

• For a multi-decade claim, evidence must be anchored:
  • Who did what?
  • When was it done?
  • Where exactly on the land was it done?
  • Was it done as of right (asserting ownership), not as a permissive arrangement?
• Risk note: The longer the period, the more likely it is that gaps will appear; the litigation risk tends to increase unless supported by corroboration such as records, dated photographs, independent witnesses, and consistent documentary material.

Step 6: Ensure the relief sought matches what is proved

• If only a residence and immediate functional surrounds are proved, seek declaratory relief confined to that area.
• For access corridors:
  • Treat them as discrete parcels requiring discrete proof of possession and intention.
  • Do not assume a court will “add access” as a matter of convenience.
• Risk note: Overreaching relief requests tend to attract a relatively higher risk of reduction or rejection.

Relevant Property-law analogues within the category (as contextual cross-checks):

• Statutory frameworks governing title, registration status, and correction mechanisms may be engaged depending on jurisdiction and title history.
• Evidence quality often determines outcome more than doctrinal novelty.

3. Equitable Remedies and Alternative Claims

Execution Instruction: Analyse whether Equity or other common law doctrines may offer alternative paths where strict statutory avenues are constrained.

Promissory / Proprietary Estoppel (Property context)

• Clear and unequivocal promise or representation:
  • Did the paper title owner or predecessor represent that the claimant owned, would own, or could permanently use the land?
  • Examples include explicit assurances about boundaries or long-term exclusive use.
• Detrimental reliance:
  • Did the claimant act to their detriment on the faith of that promise?
  • Examples: building structures, investing in improvements, relocating, altering business operations.
• Unconscionability:
  • Would it be against conscience for the paper title owner to resile from the representation after the claimant relied on it?
• Result reference:
  • Equity may restrain the title holder from denying the claimant’s expectation and can support relief such as an interest in land or compensation, depending on the circumstances.

Unjust Enrichment / Constructive Trust (Property context)

• Benefit to the title holder at the claimant’s expense:
  • Did the claimant contribute money or labour improving land that is legally owned by another?
• Unjust retention:
  • Is it against conscience for the title holder to retain the benefit without compensating the claimant?
• Result reference:
  • Courts may award equitable compensation, order restitution, or declare a beneficial interest via constructive trust in appropriate circumstances.

Procedural Fairness / Administrative angles (if a government project triggered the dispute)

• If government action exposed a boundary problem, parties sometimes explore administrative decision pathways.
• Risk note: Such paths tend to be context-specific and often do not substitute for proving proprietary rights as between private parties.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds (Property/adverse possession context):

• Required statutory period:
  • In this case, the relevant framing required proof over a 40-year period from 1949 to 1989 for the claim as advanced.
• Continuity threshold:
  • Continuous possession must be shown for the entire period, subject to lawful tacking across predecessors.
• Exclusivity threshold:
  • Possession must be exclusive to the claimant, inconsistent with the paper title owner’s possession.

Exceptional Channels (Crucial):

• Partial success pathway:
  • Even if a broad claim fails, a claimant may still succeed for a smaller area (residence and immediate functional surrounds) where evidence is strong.
• Curtilage shaping:
  • Curtilage may extend beyond a narrow perimeter where necessary to serve the dwelling’s functional purpose, if supported by evidence and principle.

Suggestion:

Do not abandon a potential claim simply because a broad claim appears difficult. Consider whether a narrower claim aligns better with your evidence. Conversely, do not assume a court will supply missing proof through rural common sense; plan to prove each element and each parcel.

5. Guidelines for Judicial and Legal Citation

Citation Angle:

It is recommended to cite Evans v Smith [2025] NSWCA 102 in submissions involving:

• The evidentiary burden for adverse possession across large rural tracts.
• The principle that possession of part does not necessarily establish possession of the whole.
• The functional approach to curtilage and the limits of court inference when evidence is missing.
• The caution against speculation and the strict application of onus of proof in defining access corridors.

Citation Method:

As Positive Support:

• Where your matter involves a claimant seeking adverse possession beyond a residence area, cite this authority to support the proposition that clear evidence is required for the bulk land and that fences alone may be insufficient without proof of use across the claimed area.

As a Distinguishing Reference:

• If the opposing party cites this case to resist a claim, you may distinguish it by demonstrating that, unlike in that case, your evidence covers the bulk land consistently across the whole period, with concrete acts tied to time and place (maintenance, improvements, exclusion, documented use).

Anonymisation Rule:

Do not use real names of the parties in your narrative analysis. Use procedural titles such as Appellants and First Respondent. When citing the authority, retain the formal case name and citation in accordance with standard practice.

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Conclusion

This judgment demonstrates that adverse possession is won by disciplined proof, not by a broad story. When a claimant seeks to take registered land, the Court will ask a simple question with a demanding answer: what did you do on this land, continuously, exclusively, and openly, for the whole required period?

Golden Sentence:

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 Federal Circuit and Family Court of Australia (Evans v Smith [2025] NSWCA 102), 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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