John Orth, ‘Termination of Tenancy in Common by Adverse Possession: A Comparative Lesson from the United States’

INTRODUCTION
The common law recognised four types of co-ownership: joint tenancy, tenancy in common, coparcenary, and tenancy by the entireties. Of these, only the joint tenancy and the tenancy in common retain relevance in Australian law. And of those, the tenancy in common is the simplest: tenants in common share possession, but otherwise each cotenant’s interest, although undivided, is alienable, devisable, and inheritable. Unlike joint tenancy, tenancy in common provides no right of survivorship, and there is no requirement that the cotenants’ shares be equal. Notwithstanding the simplicity of the estate, tenancy in common can cause some of the trickiest problems in one particular instance: the operation of the law of adverse possession. In American law, adverse possession continues generally to operate according to common law principles. It is a common assumption that in Australian law the operation of Torrens title, and especially the concept of indefeasibility, obviates the operation of adverse possession. That misunderstands the Australian position …

Orth, John, Termination of Tenancy in Common by Adverse Possession: A Comparative Lesson from the United States (2019) 40(2) Adelaide Law Review 609.

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