Angelo and Susan Gianchino purchased a property at Mont Albert in Victoria. Together as joint tenants in 1983. They had two children Victoria and Ben.
On 10 July 2004, Angelo moved to Toowoomba in Queensland leaving Susan and the two children in Victoria. At the time Victoria was 18 and Ben 10.
A few weeks later, Susan told Angelo that that she and the children would not be following him to Queensland. The couple separated but never divorced.
In August 2004, Susan changed the locks at the house to exclude Angelo from the property.
In March 2005, Susan shipped a number of boxes to Angelo at his request, containing some items that he had left at the property. On 19 September 2005, Angelo returned to the property to collect more of his personal items. He had sought permission from Susan to return for this purpose.
Between 2004, after he left the property, and May 2008, Angelo made some payments towards the mortgage. In his evidence, Angelo agreed that these payments were made as a contribution to child support.
Susan died on 12 February 2019 and Victoria and Ben were the executors of her will.
Because the property was owned as joint tenants by Angelo and Susan, Angelo became the sole proprietor following Susan’s death.
Victoria and Ben refused to leave the property and claimed a right to ownership of the property because their mother had been in adverse possession for at least 15 years, the period of time required under the law in Victoria.
Adverse possession occurs if there is actual possession by way of custody or control of the land and also if there is an intention to exercise that custody and control for the benefit of the possessor.
Angelo in part, argued that his contributions to the mortgage showed that he did not give up his interest in the land. The court rejected this argument and pointed to his sworn evidence that these payments were made as a contribution to child support.
The court held that it was when Susan changed the locks that she took control and custody of the property to the exclusion of Angelo and Victoria and Ben continued that adverse possession after her death.
Victoria and Ben became the registered proprietors of the property.
