ESTATE OF THE MOTHER AND SON-DEFENDANT BOTH CLAIMS POSSESSORY INTEREST OVER THE SAME PROPERTIES
Pauperis v Pauperis [2020] NSWSC 1470 (23 October 2020)
This case involves a dispute over the estate of the deceased mother where her children are the parties. The plaintiff claims that the deceased has legal possession over the properties in dispute while the defendant claims to have possession over the properties for a long time before the deceased’s death and therefore entitles him to make his own application for possessory title.
Facts:
These proceedings concern the estate of Lieselotte Kathe (known as Liese or Lisa) Pauperis. She had three sons: Kurt Werner Pauperis, Ralph Udo Pauperis and John Edgar Pauperis. Ralph is the plaintiff in the proceedings. The defendants are Kurt and Judith (Kurt’s wife).
Ralph’s case is that as at his mother’s death, she was in legal possession of the Steigis estate properties. He says that Kurt and Judith only ever lived at Edward Street and looked after the Sanctuary Point property by arrangement with the deceased. As a result, by the time of her death, the deceased had an accrued entitlement to obtain possessory title to the properties under the Real Property Act.
Ralph contends that, as his mother’s executor, Kurt was obliged to prosecute applications for possessory title for the benefit of her estate. His failure to do so was a breach of his duty as executor. In the case of the Sanctuary Point property, registration of a possessory title over the property in his and Judith’s names was a further breach of duty. Defendans on the other hand, contends that they had been in possession of those properties for a long time before the deceased’s death and were therefore entitled to make their own application for possessory title.
The principal relief claimed by Ralph with respect to the Edward Street property is an order compelling Kurt as executor to apply for possessory title over the property and thereafter to deal with it as an asset of the deceased’s estate. This would mean selling the property once possessory title is obtained and distributing the proceeds in accordance with the deceased’s will, under which Ralph would receive one-third.
Issue: Does the deceased have possessory interest over the properties in dispute which entitles her an application for possessory title?
Held:
The court does not accept that the deceased ever handed the property over to Kurt and Judith, in the sense that she ceded possession of it to them. Kurt and Judith first obtained occupation of the Edward Street property with the permission of the deceased, and on terms that they would pay the rates and outgoings on that property and on the Sanctuary Point property. This in itself is an indication of an intent by the deceased to continue in legal possession of those properties. This is confirmed by the deceased’s maintenance of her name on the council records for the property.
The court is not satisfied that Kurt and Judith ever exercised any rights of occupation or dominion over the land which was adverse to that of the deceased. Payment of the rates and outgoings on the land was, on its findings, consistent with the terms on which the deceased had permitted them access in the first place. Judith’s conversation in January 2012 with the neighbour which touched on the potential for sale was not explored in the evidence. The sale contemplated may have been a sale by the deceased. In any event, nothing came of the proposal and was only shortly before the deceased’s death. There is no suggestion that the deceased ever knew about it.
Conclusion: At the time of her death, the deceased had a possessory interest in the Edward Street and Sanctuary Point properties, which entitled her to apply for possessory title over those properties, and this interest passed to Kurt as the deceased’s executor.
