New South Wales Consolidated Acts

LIMITATION ACT 1969 - SECT 38

38 Adverse possession

(1) Where, on the date on which, under this Act, a cause of action would, but for this section, accrue, the land is not in adverse possession, the accrual is postponed so that the cause of action does not accrue until the date on which the land is first in adverse possession.

(2) Subject to subsection (3), where a cause of action accrues to recover land from a person in adverse possession of the land, and the land is afterwards in the adverse possession of a second person, whether the second person claims through the first person or not, the cause of action to recover the land from the second person accrues on the date on which the cause of action to recover the land from the first person first accrues to the plaintiff or to a person through whom the plaintiff claims.

(3) Where a cause of action to recover land accrues and afterwards, but before the cause of action is barred by this Act, the land ceases to be in adverse possession, for the purposes of this Act--

(a) the former adverse possession has no effect, and

(b) a fresh cause of action accrues on, but not before, the date when the land is first again in adverse possession.

(4) For the purposes of this section--

(a)
"adverse possession" is possession by a person in whose favour the limitation period can run,

(b) possession of land subject to a rentcharge by a person who does not pay the rent is possession by the person of the rentcharge, and

(c) in a case to which section 33 applies, receipt of the rent by a person wrongfully claiming to be entitled to the land subject to the lease is, as against the landlord, adverse possession of the land.

(5) Where land is held by joint tenants or tenants in common, possession by a tenant of more than his or her share, not for the benefit of the other tenant, is, as against the other tenant, adverse possession.