A Sunshine Coast restauranteur who took up occupation of his de facto partner’s home, has claimed her 21 year absence entitles him to its ownership.

Franca Rago arrived from Europe in 1982 at age 21, to join Daniel Cleret, ten years her senior.

They had two children, underwent several estrangements and finally separated in 1992 when she returned to France where the pair had first met.

In 1987, after a period apart, Franca financed the purchase of a Kenilworth home in her sole name through the Queensland Housing Commission.

It was that home to which Cleret laid his 2011 Supreme Court claim for title by “adverse possession” or alternatively, by way of “constructive trust” arising from the value of his contributions to the property.

But his claim to have built extensions to the home was reduced, after examination of the evidence, to having constructed “a modest ensuite bathroom” only.

Without evidence that the value of the property had been thereby increased, the court was unable to conclude that such work was in any way relevant.

Similarly defeated was his contention that the deposit for the home was paid from their joint account, once established that the $3000 payment was immediately reimbursed by Franca, on receipt of her first home owners grant.

Yes, he was permitted to reside there rent-free from 1996, after other tenants had vacated.

But Daniel’s payment of mortgage instalments, rates and maintenance was taken by the court to be payments in lieu of rent. They did not create any ownership entitlement.

And although a party may in some circumstances claim ownership by “adverse” possession after 12 years, in this instance, Cleret’s occupation did not become “adverse” until June 2011 when he was served with an eviction notice.

Self-represented at trial and on appeal, he failed to overturn Franca’s legal ownership or defeat her claim that he be required to vacate the home.

Three appeal judges unanimously upheld  the lower court judgement and Daniel was also ordered to pay his former partner’s legal costs of the trial and appeal.

Cleret v Rago [2014] QCA 158 Gotterson and Morrison JJA and Philippides J 15/07/2014


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