Tear down the wall! Adverse possession

The Supreme Court of Western Australia recently handed down an interesting decision on the law of adverse possession in the matter of Ben-Pelech v Royle [2019] WASC 297.


Adjoining lots 238 and 239 on Hesperia Avenue, City Beach were both owned by Mrs Jean Freeth.  There were side by side residential dwellings on the lots and Mrs Freeth lived in the dwelling on lot 239.

However, in 1993 Mrs Freeth decided to sell her properties.  Lot 238 was purchased by Boaz and Hannah Ben-Pelech (the plaintiffs) and their son, and lot 239 was purchased by Glenn and Rosemary Royle (the defendants). 

The plaintiffs gradually purchased other land adjoining lot 238, and demolished the existing houses.  In late 2017 the plaintiffs subdivided four adjoining lots and created seven new lots. 

However, the following problems arose:

  • the boundary fence that existed at the time the lots were purchased from Mrs Freeth (the old fence) had been erected entirely within the boundary of lot 238, instead of having been erected on the correct dividing boundary line between lots 238 and 239;
  • a gazebo straddled the boundary between the lots; and 
  • the bore on lot 239 had linked pipes that reticulated both lots. 

The purchase contracts tried to address these issues by including special conditions which:

  • put the parties on notice about the boundary problems; 
  • excluded them from making complaints about them to Ms Freeth in the future; and 
  • reserved Mrs Freeth’s right to replace the old fence before settlement (however, that did not occur). 

Before settlement, Ms Freeth engaged licenced surveyors to prepare a report to show the true position of the boundary between the lots and provided the defendants with a copy of the report.

In 1993 the parties agreed to demolish, and then demolished, the old fence and erected a new fence (the replacement fence) on the ‘correct’ boundary. 

The Proceedings

In mid 2017 it came to light that in 1992 the surveyor had wrongly placed the front corner survey peg 0.53 m from the correct position, which had caused an increase in the frontage for lot 239 and a consequent decrease for lot 238. 

The plaintiffs sought a declaration that the boundary between the two adjoining lots conform to the certificate of title, and permission from the court to:

  1. tear down the replacement fence and retaining walls; and 
  2. erect a new fence and retaining walls on the correct boundary.

The defendants opposed this and counterclaimed that they held possessory title over the disputed area (through adverse possession) due to their continuous use and possession of the disputed area. 

Decision - the rear of the disputed area

The replacement fence extended along approximately two-thirds of the boundary.  Near where the fence ended there was a side gate affixed to the fence on the defendants' lot.  When the gate was closed it effectively sealed off and secured the rear area at the back of the defendants' house from general access (rear area).  The rear area had a side garden, pool and trees along the fence. From 1993 the defendants added garden beds, limestone blocks and reticulation pipes.  Justice Kenneth Martin found that the defendants had made good their claim to adverse possession over the rear area on the basis that:

  1. he was left in no doubt that they had had continuous, uninterrupted and exclusive advantage over the rear area, to the plaintiffs’ disadvantage; and
  2. the 12-year period (during which it had been open to the plaintiffs to seek to eject the defendants from the disputed areas) had expired by February 2006.

Decision - the front of the disputed area

From 1994 the area from the start of the replacement fence to the Hesperia road verge (front area) had been open and unenclosed, being either sand or lawn.  In 1998 the defendants planted 5 olive trees in the front area and made a garden bed during their renovations. The defendants asserted evidence of continuous use by watering, tending, mulching, mowing, edging, and generally maintaining the front area.

His Honour dismissed the claim for adverse possession of the front area, finding that unlike the rear area where the physically observable to third parties, continuous enclosure was more strongly established by the fixed in situ position of the replacement fence and the capacity to close off the rear area by the use of gate, the evidence of ‘exclusive use’ of the front area was not unequivocal enough to match the clarity of what is required to establish adverse possession.

Other arguments

The court also rejected the plaintiffs’ technical arguments raised in relation to the ‘cleansing effect’ of s 163 of the Transfer of Land Act 1983 (WA) and s 123 of the Property Law Act 1969 (WA), as well as the plaintiff’s allegation that the defendants had consented to the possession. 


Ultimately, the plaintiffs failed in their claim relief for a court ordered demolition of the replacement fence.

Lavan comment

If you have any questions in relation to the issues raised in this article, or require advice as to how to protect the integrity of your real estate interests, please do not hesitate to contact Peter Beekink or James Steedman.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.