Leasing and Property Newsletter – April 2019
In this edition our team report on the following topics:
- Delays while the Lessee is in Administration
- Adverse possession – who owns the property?
Delays while the Lessee is in Administration
The Corporations Act provides a timeline for an administration, however this will frequently be extended by an application to the Court by the administrator. Landlords often want to know whether the premises will become vacant and when, so they can arrange for a new tenant. On occasion, the premises may be part of a development plan and delays in administration can delay the development.
In a recent Supreme Court case involving the 87 retail premises that were part of the Ed Harry group, the administrator applied for an extension to the administration period. The Court set out what it needed to consider when deciding whether or not to grant the extension.
That Administration is now almost at an end, so we can see what the administrator was able to achieve with the extension.
Adverse possession – at the end of the day … who owns the property?
A small parcel of vacant land, approximately 2.743m wide and 18.288m long, was situated between two properties, numbers 5 and 7. A right of way was granted in 1902 to the benefit of number 7. Under the terms of the right of way, the owner, tenants and occupiers of number 7 have the right to pass and repass along the parcel of land (“claimed land”).
It is claimed by the owner of number 7 that since December 1986, when the Plaintiff acquired number 7, he and his tenants have used the claimed land in ways not authorised by the right of way and this was carried out without the permission of the registered proprietor and accordingly, the Plaintiff claimed adverse possession of the claimed land and that the title held by the registered proprietor had been extinguished at the limitation period of 12 years for an action reclaiming the claimed land having expired.