Possession, Indefeasibility and Human Rights

Abstract

The interaction of land based doctrines with human rights law has, to date, rarely attracted the interest of land lawyers. However, with the surge in human rights jurisprudence, and the European litigation of JA Pye (Oxford) Ltd & Ors v Graham and Ors, it is becoming apparent that human rights may have a significant future role to play in real property law. This paper examines the potential for that conflict in three areas. Two of these areas represent archetypal possession of land doctrines (adverse possession and prescriptive easements), with the third, the ideological foundation stone of registration land systems, indefeasibility. The suggestion is made that any resolution between these established real property doctrines and human rights lies not so much in logic, but in the value judgments that the courts will make in balancing the economic imperatives of the Torrens system with the historical and traditional importance of possession to land ownership. In other words, how we define, determine and allocate realty interests in contemporary Australia.