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[2009] VSC 496
plaintiff. Kaye J declared, in the form sought in argument, that the plaintiff as administrator could claim the land by adverse possession and that the facts supported the vesting order sought under s 62 of...
The Court accepted that a person who is registered as a joint owner can, in the circumstances described, acquire title by possessing the land adversely to the other co-owner for the statutory period. Edward Franklin had occupied and controlled the property for many years while his sister Myrtle did not use it or exercise ownership rights. His registered joint-tenancy interest ended at death, but the Court treated his separate possessory claim as surviving and passing to his administrator. Because the administrator continued possession and the required period had elapsed, the Court made the declaration sought to support a vesting order.
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2,310 words · generated 29/09/2026
In Re Franklin [2009] VSC 496, Kaye J considered whether John Edward Franklin, as administrator of his father's estate, could obtain a declaration that the facts supporting an application for a land-title vesting order established title by adverse possession. The land was at 44 Greenhill Avenue, Castlemaine. The application concerned the relationship between a registered joint proprietor who had occupied and controlled the land and the other registered joint proprietor, who had not used it.
3 cited instruments linked from this judgment.
Edward John Franklin bought the property in 1951 and was initially its sole registered proprietor. In 1959, he transferred it to himself and his sister, Myrtle Franklin, as joint tenants. The registration as joint proprietors took effect on 9 October 1959. Edward continued to possess the property after that transfer and did so until his death. The evidence described him treating it as his own, paying the outgoings, mortgaging it for his business, and storing many of his possessions there, including building materials, old cars and other items [5]-[6].
Myrtle never lived at the property and was never seen there, according to the evidence summarised by the Court. She lived at a different property in Castlemaine and did not exercise rights as co-owner over Greenhill Avenue [7]-[8]. The Court also noted evidence suggesting Edward may have transferred half his original interest to Myrtle to make it harder for his former wife to enforce maintenance and other obligations. That was background to the transfer, rather than a separate legal issue the Court needed to decide [9].
John was Edward's son and administrator. He obtained letters of administration on 19 March 2009 [2]. On 30 April 2009, he applied to the Registrar of Titles for a vesting order under s 60 of the Transfer of Land Act 1958 (Vic). The Registrar declined to make an order without a court ruling, considering a claim for adverse possession against a co-owner unusual. The Registrar did not seek to be joined as a party [11]-[13]. Myrtle's guardian received the application documents, and the Court was advised that the application would not be contested [10].
The case therefore raised two connected questions: whether Edward's possession could extinguish Myrtle's title despite their joint ownership, and whether Edward's possessory claim survived his death and could be continued by his administrator.
Kaye J began with the statutory framework. The Court described ss 8 and 14(1) of the Limitation of Actions Act 1958 (Vic) as providing that a proprietor's right of action to recover land is barred after 15 years of adverse possession. Section 18, the Court said, extinguishes the proprietor's title when that period expires [14]. The judgment also identified s 14(4) as supporting the proposition that a joint owner may acquire title by adverse possession against another co-proprietor [15].
The critical factual feature was not simply that Edward lived at the property. The Court relied on a pattern of possession and control that it regarded as exclusive: he occupied it, paid its expenses, mortgaged it, and stored his property there, while Myrtle did not live there or exercise any rights as co-owner [6]-[8], [17]. Kaye J concluded that Edward had possessed the land to Myrtle's exclusion and that her title had been extinguished under s 18 by the time of his death, indeed well before it [17].
The judgment relied on prior authorities for the possibility of adverse possession between co-proprietors. At [15], Kaye J referred to Beaumont v Hochkins, Thornton v France and Sanders v Sanders. At [16], the Court noted the Privy Council's decision in Wills v Wills as a recent instance of the proposition. The judgment does not set out the facts or detailed reasoning of those authorities, so its own account of their role is limited: they supported the stated proposition that one joint owner may acquire title against another.
Death presented a separate issue. Edward had held the property as a joint tenant, and Kaye J accepted that his registered joint-proprietor interest did not survive his death. But the Court reasoned that the claimed adverse-possession interest was not dependent on or derived from that joint-tenancy interest [18]. It was a possessory right with a separate source. The Court relied particularly on Asher v Whitlock, and also referred to Perry v Clissold, Wheeler v Baldwin and Allen v Roughley, for the proposition that a right deriving from adverse possession could survive death and pass to an administrator [18].
The plaintiff's own role then mattered. The Court found that, as administrator, he had taken possession of the property and continued the adverse possession. The judgment also connected that possession with the chattels and personal property Edward had left there [19]-[20]. In combination, the findings allowed the Court to treat the plaintiff's possession as a continuation of the deceased's possessory claim, rather than a new claim dependent on Edward's former status as joint tenant.
Finally, the Court was satisfied that the possession had continued for more than 15 years and also more than the 30 years mentioned in s 23 in relation to persons under a disability [22]. Sections 60 and 62 of the Transfer of Land Act 1958 (Vic) provided the application and vesting-order framework described in the judgment [14]. Kaye J declared that the plaintiff was entitled to claim as administrator by adverse possession and that the facts supported the vesting order sought [21]-[22].
The judgment presents the applicable statutory position as follows: the recovery action of a proprietor is barred after 15 years of adverse possession under ss 8 and 14(1) of the Limitation of Actions Act 1958 (Vic), and title is extinguished under s 18 once that period expires [14]. The Court did not treat co-ownership as an automatic answer to an adverse-possession claim. Rather, it stated that a joint owner may acquire title against another co-proprietor, relying on s 14(4) and the cited authorities [15]-[16].
The judgment's contribution in this case is its application of those propositions where the possessor died before the application was resolved. The Court separated the deceased's joint-tenancy interest, which did not survive, from the possessory right gained through adverse possession, which it held could survive and pass to the administrator [18]. It then treated the administrator's possession as a continuation of the deceased's possession [19]-[20].
The decision should not be read as creating a general rule that every period of occupation by one co-owner is adverse to another, or that every administrator automatically continues a deceased's possession. The stated findings depended on this record: long-term possession and control by Edward, no exercise of co-owner rights by Myrtle, and the administrator's taking possession. The judgment does not give a comprehensive account of all legal elements of adverse possession or all circumstances in which a co-owner's use might be consistent with shared ownership.
The source provides no subsequent decisions, amendments, or later judicial treatment of Re Franklin. Accordingly, it establishes what Kaye J decided in 2009, but does not by itself show how the law or later case law developed afterwards.
At [14], the Court described the effect of the limitation provisions: after the relevant 15-year period, the proprietor's right to recover the land is barred, and s 18 extinguishes the proprietor's title. In plain English, the judgment treated the passage of the statutory period of adverse possession as having consequences for both the ability to recover the property and the registered proprietor's underlying title.
At [15], Kaye J said that “a joint owner may acquire title by adverse possession against other co-proprietors.” In plain English, being one of two registered owners does not, by itself, prevent a claim that the other co-owner's title has been lost through the required period of adverse possession. The judgment tied this proposition to s 14(4) and authorities it cited.
At [17], the Court concluded that Myrtle's title had been extinguished before Edward died. That finding depended on the evidence of Edward's exclusive possession and control, including his occupation, payment of expenses, mortgage and storage of goods, alongside Myrtle's lack of use or exercise of rights [6]-[8], [17]. It was a fact-specific conclusion, not a finding based merely on the formal joint registration.
At [18], the Court distinguished Edward's possessory right from his joint-tenancy interest. The latter did not survive his death, but the Court held that the former did. In plain English, the basis of the claim was not that Edward's share as a joint tenant passed through the ordinary operation of joint tenancy; it was that his separate possessory right could pass to his administrator.
At [20], Kaye J stated that the plaintiff, as administrator, “has continued to exercise Mr Franklin's right of possession to the land.” In plain English, the Court treated John's possession as carrying on Edward's existing possessory claim. That finding supported the declaration in [21]-[22].
The decision is most directly relevant to a fact pattern with several features present in the case: land held by co-proprietors; one co-proprietor in sustained possession and control; evidence that the other co-proprietor did not occupy or exercise ownership rights; a period exceeding the applicable limitation period; and, where the possessor has died, an administrator who has taken possession and continues the claim.
The judgment's evidence of possession was concrete. Edward occupied the land, paid expenses, mortgaged it for his business and placed substantial personal property there [6]. Myrtle did not live there or exercise rights over it [7]-[8]. Those facts mattered to the Court's finding that possession was to the exclusion of the co-owner [17]. A mere family relationship, shared title, or history of occupation is not identified in the judgment as enough by itself.
The succession aspect is relevant where a claimant seeks to rely on possession begun by a deceased person. Re Franklin distinguishes a joint-tenancy interest that ends on death from a possessory right the Court treated as surviving and capable of passing to an administrator [18]. It also relied on evidence that the administrator took possession and continued the deceased's possession [19]-[20]. The decision does not determine how the principle would apply where the administrator did not take possession, where the deceased's possession was interrupted, or where the other co-owner had actively used the land.
A lawyer assessing another matter would need to check the applicable statute and its time periods, the quality and continuity of the possession, evidence of the co-owner's use or non-use, the effect of any disability, and the legal basis on which a personal representative claims to continue possession. Those are questions raised by the issues in the judgment, not conclusions about any other property dispute.
The supplied judgment text contains no later decisions applying, distinguishing, following, or criticising Re Franklin. It is therefore not possible to describe later judicial treatment from this source alone.
Within Re Franklin itself, Kaye J referred to earlier authorities on adverse possession between co-proprietors, including Beaumont v Hochkins, Thornton v France and Sanders v Sanders [15]. The Court also mentioned Wills v Wills as a recent example of the proposition [16]. For the survival and transmission of possessory rights after death, it referred to Asher v Whitlock, Perry v Clissold, Wheeler v Baldwin and Allen v Roughley [18], and to Willis v Earl Howe and Allen v Roughley in relation to the administrator's continuation of possession [19].
Those references show the authorities Kaye J relied on in 2009. They do not establish how later courts treated Re Franklin. Nor does the judgment provide enough detail to state that the cited cases adopted precisely the same factual or statutory approach. Any account of later treatment would require later judgments or other legal sources not included in the material provided.
The judgment resolves the application on the facts before Kaye J, but it leaves several questions outside its scope. First, it does not give a detailed test for deciding when one co-owner's possession is sufficiently exclusive or adverse to another's. The Court found exclusion on this evidence, particularly Edward's control and Myrtle's lack of any use or exercise of rights [6]-[8], [17]. The judgment does not explain how different evidence of shared access, contributions, permission, or communication between co-owners would affect the analysis.
Second, the judgment does not set out the complete requirements for adverse possession under Victorian law. It discusses the limitation periods and the effect of s 18, and describes the possession shown by the evidence. It does not provide a broader treatment of every element that might arise in a contested case.
Third, the judgment refers to the 30 years mentioned in s 23 for persons under a disability, but it does not analyse the nature of any particular disability or explain how that provision would operate in a case with a shorter or interrupted period [22]. Here, the Court was satisfied that possession had lasted beyond both 15 and 30 years.
Fourth, the reasoning about an administrator depends on the Court's finding that the plaintiff took possession and continued Edward's possession [19]-[20]. The judgment does not address every question that might arise about the timing, acts, or legal authority required for an administrator to continue a deceased person's possessory claim.
Finally, the decision records that Myrtle's guardian had notice and that the application would not be contested [10]. It does not examine how disputed evidence, an active challenge by the co-owner, or competing claims by other interested parties might affect a similar application. The judgment should therefore be understood by reference to its stated facts, statutory provisions and reasoning, rather than as resolving questions it did not consider.
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REAL PROPERTY - Adverse possession against co-proprietor - Effect of death of joint tenant in whose favour limitation period runs - Application to Registrar of Titles for vesting order - Limitation of Actions Act 1958 (Vic) ss 8, 14(1), (4), 18, 23 - Transfer of Land Act 1958 (Vic) s 60, 62.
1 The plaintiff, by originating motion, claims a declaration that the facts disclosed in his application to the Registrar of Titles, lodged on 30 April 2009 for a vesting order under s 60 of the Transfer of Land Act 1958, are sufficient to establish that the applicant has acquired a title to the land described in Certificate of Title volume 3398 folio 435 by adverse possession. That land is situated at 44 Greenhill Avenue, Castlemaine.
2 The plaintiff is the son and administrator of Edward John Franklin (deceased). He was granted letters of administration of the estate of Mr Franklin on 19 March 2009.
3 The background facts to the application can be summarised very shortly.
4 In 1943 the late Mr Franklin married his wife, Winifrede. There were two children of the marriage, namely, the plaintiff and another son Kevin, who has since died. In 1951 Mr Franklin purchased the property at Greenhill Avenue and became registered as the sole proprietor of it. Thereafter, he, his wife and his family lived at the property until about 1958, when Mr Franklin separated from his wife, Winifrede. After the separation, Winifrede Franklin sought maintenance from Mr Franklin. He resisted paying that maintenance and indeed, at one stage, was arrested and taken to prison for his failure to pay that support to his former wife.
5 On 9 May 1959 Mr Franklin transferred the property at Greenhill Avenue to himself and his sister, Myrtle Franklin, as joint tenants. Accordingly on 9 October 1959, Mr Franklin and Myrtle Franklin became registered proprietors of the property as joint proprietors.
6 The material which has been put before me establishes that after his separation from his wife and, indeed, after the registration of himself and Myrtle as joint tenants of the property, Mr Franklin remained in possession of the property until his death. Through the whole of that period he treated the property as his own, to do with it as he liked. He paid all the outgoings on it. In 1966 he mortgaged the property for his own business and subsequently repaid that mortgage in about 1972. While occupying it, he stored a large number of items on the property, including building materials, old cars and other paraphernalia, particularly in the two houses located on the property. As a result, at the date of his death, the property and the two houses had become significantly cluttered with the possessions of Mr Franklin.
7 The other co-proprietor, Myrtle Franklin, never lived at the property and from the evidence of the witnesses, she was never seen at the property.
8 The materials, in support of the application under s 60 to the Registrar of Titles, satisfy me that Myrtle Franklin never exercised any rights as co-owner of the property at all. Myrtle never married. She lived at her parents' house in Bowden Street, Castlemaine, which she ultimately inherited in 1965, and of which she remained the proprietor until quite recently. She resided at Bowden Street, Castlemaine until 2006 and is now a resident in the Mt Alexander hospital.
9 The materials also suggest that it is likely that Mr Franklin transferred half his original interest in the property to Myrtle in order to make it difficult for his former wife, Winifrede, to enforce maintenance and other obligations against him. As I stated, he was very reluctant to pay any maintenance at all to his former wife and indeed suffered imprisonment for his failure to do so.
10 Pausing there, when this matter came before Harper J on 6 October, he gave directions for the service of this application on the co-proprietor, Myrtle Franklin. I am satisfied that this application has been duly served on Myrtle Franklin and has also come to the attention of Ms Franklin's guardian, Brian Medbury, with whom the plaintiff's solicitor has spoken, and to whom he has confirmed that he has received and read the documents. I have received, and placed on the court file, a letter from Mr Medbury's solicitors advising that he will not be contesting the application.
11 On 30 April 2009 the plaintiff lodged an application with the Registrar of Titles for a vesting order, based on title by possession under s 60 of the Transfer of Land Act. In support of that application, he filed a statutory declaration made by himself, and five other statutory declarations.
12 In response, the Registrar of Titles indicated that he was not prepared to make a vesting order. He considered that because a claim for adverse possession against a co-owner is quite rare, he should not make a vesting order in the absence of a ruling of this court that he should do so.
13 The Registrar of Titles has indicated that he does not seek to be made a party to this application.
14 Turning briefly to the legislation, the combined effect of ss 8 and 14(1) of the Limitation of Actions Act 1958 is that the right of action to recover land by a proprietor of land is barred by 15 years' adverse possession. Section 18 provides that at the expiration of that period, the title of that person is extinguished. Section 60 of the Transfer of Land Act provides that a person, who claims he has acquired a title by adverse possession, may apply to the registrar for an order vesting the land in him for an estate in fee simple or such other estate as he may claim. Section 62 empowers the registrar to make such a vesting order, if he is satisfied that the applicant has acquired title by possession.
15 It is clear, both by the operation of s 14(4) of the Limitation of Actions Act, and also from authorities in respect of that and similar provisions, that a joint owner may acquire title by adverse possession against other co-proprietors. I refer to Beaumont v Hochkins[1]. See also Thornton v France[2], and Sanders v Sanders[3].
16 A recent instance of the effect of that proposition is provided by the decision of the Privy Council in Wills v Wills[4], which was helpfully drawn to my attention by Mr Ryan, who appeared on behalf of the plaintiff.
17 In the present case, the facts in the statutory declarations, lodged with the registrar, establish that during his life-time, the late Mr Franklin exercised sole rights of possession over the property, and that he did so to the entire exclusion of the co-owner, Myrtle Franklin. He treated the property as his own. As I stated, he occupied it, paid the expenses in relation to it, and mortgaged it. He stored a very large amount of his own goods on the property. It is clear therefore, that by his death, and indeed well before his death, the title of Myrtle to the property was extinguished, pursuant to s 18 of the Limitation of Actions Act.
18 One question which did occur to me, is whether the death of Mr Franklin as a joint tenant had, in any way, affected the plaintiff's claim to title by adverse possession. It is, of course, trite that the late Mr Franklin's interest as joint registered proprietor did not survive his death. However, his possessory right, as now claimed by the plaintiff as his administrator, was not dependent on, or derivative from, his interest as joint proprietor. It is clear, from a number of authorities, that the late Mr Franklin's interest, deriving from his adverse possession of the property, survived his death and was capable of passing to the plaintiff as his administrator. See in particular Asher v Whitlock[5]. See also Perry v Clissold[6], Wheeler v Baldwin[7]; Allen v Roughley[8].
19 Further, as his administrator, the plaintiff has taken possession of the property. He has thereby derived title to the chattels and personal property stored on the property, and as administrator has continued the adverse possession of the late Mr Franklin. See Willis v Earl Howe[9]; Allen v Roughley[10].
20 Thus, as the administrator of the estate of the late Mr Franklin, the plaintiff has continued to exercise Mr Franklin's right of possession to the land.
21 In those circumstances, I am satisfied that the plaintiff is entitled to claim, as administrator of the estate of the late Mr Franklin, the right to the property by adverse possession.
22 As I have stated, I am satisfied that the adverse possession has endured for more than the statutory period of 15 years and, indeed, has endured for more than the 30 years referred to in s 23 of the Limitation of Actions Act, as affecting persons under a disability. I am therefore well satisfied that the plaintiff is entitled to the vesting order sought by him under s 62 of the Transfer of Land Act, and for those reasons I shall make the declaration in the form sought in the course of argument before me.
[1] [1889] VicLawRp 90; (1889) 15 VLR 442, especially at 448-9, Hodges J.
[5] (1865) LR 1 QB 1 at page 6, Cockburn CJ.
[6] [1907] AC 73 at 79.
[7] [1934] HCA 58; 1934 52 CLR 609 at 632-3, Dixon J.
[9] [1893] 2 Ch 545 at 553 Kay LJ.
(1955) 94 CLR 98
Kaye J declared, in the form sought in argument, that the plaintiff as administrator could claim the land by adverse possession and that the facts supported the vesting order sought under s 62 of the Transfer of Land Act 1958 (Vic).