In what is understood to be a first in the jurisprudence of NSW, Speirs Ryan has successfully obtained an order from the Supreme Court granting a possessory, primary application in Molloy v Beehag [2025] NSWSC 1462.
The case involved an historic cottage in Balmain, constructed in around 1885, before the bulk of the land in Balmain had been converted to Torrens title. The deposited plan of the land, registered in 1923, plotted the location of the historic cottage, and showed that it was partly constructed on neighbouring land. The encroachment covered a triangle of land of 3.5 sq metres, occupied by the kitchen of the historic cottage.
Over time, the surrounding land was subdivided and converted from old system title to Torrens title. The land on which the historic cottage was built was also converted to Torrens title, and was transferred through several hands, but in all of that process, no one noticed that the kitchen was built on land to which the owner of the cottage did not have title.
Speirs Ryan did not act for our client when he purchased the cottage.
In order to obtain title to the kitchen triangle it was necessary to first establish that the land had not been converted to Torrens title. This required old system title searches to be made back to the original Balmain subdivisions in the 1870s, and to then track through successive subdivisions, transfers and estates to establish both the current “documentary” owner of the kitchen triangle, and to establish that the land had not been converted to Torrens title. This is highly specialised work, once performed by a profession known as “law stationers”, but now that most land has been converted, law stationers are a dying breed. We were fortunate to be able to connect with Mark Groll, one of the few remaining professionals with the necessary skills and experience.
The Real Property Act enables possessory title applications to be made for Torrens title land, but the right is confined to whole lots, to parts of lots that have been defined by occupational boundaries, and to parts of historic dunny cart lanes. The kitchen triangle did not fit those descriptions, and so it was essential that we started the process by making an old system title, possessory application.
There are no textbooks on this.
In general terms, a person needs to occupy land as if that person is the legal owner, and to the exclusion of the person with documentary title, for at least 12 years, as the starting point to a claim for adverse possession.
In our case, the evidence was clearly on our client’s side. His predecessor in title had occupied the historic cottage (and kitchen triangle) from the 1960s until about 2019, more than enough time to prove possession that was adverse to any claim of the “documentary” owner. Our client was able to piggy-back on the possessory title of his predecessor. In fact the court held that the documentary owner’s title had already been extinguished by the predecessor, and that title to the kitchen triangle was transferred to our client when the sale of the cottage was completed.
The evidence to support the possessory application was the same as the evidence ordinarily required to succeed in a primary application to convert title from old system title to Torrens title.
It followed that once we had established possessory title, it was a short journey to convert the old system title to Torrens title.
Our team, led by Kathryn Siganos and Pat Ireland put together an unbeatable case, and our barrister, James Mack, did a fantastic job in directing the case to the true issues, and in the submissions made to the court in support of the application.
The court was satisfied with the evidence and submissions, and had no trouble in granting the applications.
Download PDF here – Possessory title triumph
Disclaimer: This article is a general summary with focus on issues of interest to the authors. It is not intended to be used as legal advice.
Speirs Ryan is a boutique property law firm based in Sydney, Melbourne and Newcastle with national coverage. The firm is uniquely placed with specialist teams in both property transactions, construction and strata law
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