About two years ago, the Queenstown Lakes District Council started trying to track down the descendants of 17 sections in the Cardrona Valley which had been abandoned. This was triggered by an incident in 2008, when a couple of people tried to claim ownership of two sections opposite the Cardrona Hotel by fencing them off and putting signs on the fences claiming the land was private property. The last known owner of the sections was a 19th century Chinese gold miner. Their attempt to claim the land was unsuccessful, but it raises several questions.
If you have been grazing stock on land you suspect has been abandoned or belongs to a ”lost” owner, what rights to do have? Can you turn your occupation into some form of permanent ownership? If you have been using the land for long enough, you may be able to claim ownership of it, without having to pay for it.
The Land Transfer Amendment Act 1963 allows any person who is in possession of land, and who has being in continuous possession of that land for at least 20 years, to apply to the Registrar-General of Land for the issue of a fee simple title to the land in that person’s name.
What does “possession” mean? The Courts have said that the possession relied on must be “actual, open and manifest, exclusive, and continuous. “ The possession must be open so that, if the owner lived in the locality and passed the property from time to time, he or she could reasonably see that some person had taken possession of the land.
The type of conduct which indicates possession will vary according to the type of land. In the case of vacant and unfenced land which is not being cultivated or grazed, there is little that can be done on the land to indicate possession. In many cases, possession cannot be continuous from day to day, but possession may still be established even if there are intervals, and sometimes long intervals, between events of use by the applicant. Fencing the land is evidence of possession, but it is not necessary, nor is it conclusive evidence of possession.
It will be up to the person making the application to prove possession.
If the Registrar is satisfied that the applicant has proved possession, then the application is advertised by the Registrar.
If the registered owner of the land lodges a caveat, then the applicant’s claim is defeated. If not, then the Registrar will issue a fee simple certificate of title in the applicant’s name. No application can be made if;
- the land being claimed is owned by the Crown
- the land being claimed is Maori land
- the land being claimed is owned by a local authority
- the land is owned by a trust for any public purpose
- the claim for the land which is occupied is based on the fact that a fence, wall, hedge, building, ditch or other means of marking the boundary between that land and the adjoining land is not on the common boundary
- the claim is based on a change of course of any river, creek or stream
- the land is isolated from any other land in the same ownership by any river, creek or stream or any other natural feature of the land or of adjoining land or by any road.
- the owner of the land claimed is under a disability e.g. the owner is under 18 years old, or has a mental disability