What is adverse possession?
Adverse possession allows a person to claim title to land that is not owned by them, in circumstances where they have had exclusive and continuous possession of the land for a period of at least 15 years without the consent of the registered proprietor of the property.
What land can be claimed by adverse possession?
The vast majority of claims are for small parcels of land, usually strips and slithers of land created by misaligned fences encroaching onto neighbouring property. If you have had possession over a piece of land for 15 years or longer, adverse to the interests of the legal owner, then you may be deemed to have acquired that land by adverse possession.
Pursuant to sections 7, 7A, 7B, 7AB and 7C of the Limitation of Actions Act 1958, land that cannot be claimed include:
- Crown land, including government roads
- land owned by the Public Transport Corporation or Victorian Rail Track
- land owned by a water authority (defined by the Water Act 1989)
- land owned by the Roads Corporation (VicRoads) or any of its predecessors
- land of which a council (as defined in the Local Government Act 1989) is the registered proprietor
- any part of common property affected by an owners corporation by an owner of a lot affected by that owners corporation.
Principles to ensure an adverse possession claim is successful
Whittlesea City Council v Laurice Abbatangelo  VSCA 188 is the leading case for adverse possession. The case established principles that an applicant should have regard to for an adverse possession claim to be successful. They are as follows:
- The owner of land with the paper title is deemed to be in possession of the land unless there is evidence to the contrary.
- A person claiming possession of land must have factual possession and an intention to possess with an appropriate degree of physical custody for their own benefit. Both elements must be satisfied by an applicant. In determining whether the applicant has factual possession will depend on all the facts and circumstances, including the nature, position and characteristics of the land. With regard to an intention to possess land, the use of the disputed land must amount to more than casual acts of trespass (for example occasional grazing of animals). A mere use of the land or a special benefit will not be enough to constitute factual possession nor to demonstrate the requisite intention to possess.
- The applicant must show that it has dealt with the land as an occupying owner might have been expected to deal with it and that no-one else has done so. For example, this can be shown by paying rates or planting crops.
- The intention to possess to the exclusion of others must be made clear to the world i.e. not be hidden.
- There does not need to be a conscious intention to exclude the true owner, but rather an intention to exercise exclusive control of the land. The applicant need not believe that they are the true owner of the land.
- Possession of the land cannot be with the consent of the true owner.
- Whether or not the paper title owner realises that dispossession has taken place is irrelevant.
- Acts of possession with respect to only part of the land claimed may, in all the circumstances, constitute acts of possession with respect to all the land claimed.
- Periods of possession may be aggregated, so long as there is no gap in possession. You can establish a period of at least fifteen years from your own occupation of the land and occupation by a previous owner, or previous owners.
What is involved in an adverse possession claim in Victoria?
As a general guide the following are the practical steps in completing an adverse possession claim.
- Complete the relevant application. Depending on your circumstances, ordinarily adverse possession claims are made under section 60 of the Transfer of Land Act 1958 (Vic). However, there are also other avenues available, such as a section 99 Transfer of Land Act 1958 (Vic) application or through the Magistrates’ Court of Victoria where a claim arises in the context of a fencing dispute under the Fences Act 1968 (Vic);
- Assuming a section 60 application is made, the Applicant must complete a statutory declaration to provide evidence regarding the possession of the land, addressing a number of threshold requirements.
- A statutory declaration from at least one disinterested witness in respect of the claimed land should be completed in most circumstances. The disinterested witness does not have an interest in the property and their statutory declaration is used to support the adverse possession claim. The statutory declaration by the disinterested witness ordinarily states the witnesses means of knowledge that fences which surround the boundaries of the land have continuously stood their present position for the past fifteen years or longer.
- A letter from the rating officer (or other appropriate officer) of the municipality in which the land is situated, which:
- identifies the land claimed (e.g. including a copy of the plan of survey); and
- gives particulars of the person or people who during the last 15 years have been recorded in the municipal records as the rated owner/s.
- If the applicant has not personally been in possession for at least 15 years, the applicant should produce an assignment or chain of assignments of the possessory rights of the person or people through whom the applicant claims, for example, the predecessors in title.
- There are many other types of evidence that can be lodged with an adverse possession application. The circumstances of the possession will dictate the evidence required and is determined on a case-by-case basis.
- After the application is lodged with the Land Titles Office with the applicable fee, the application will be assessed and, following that assessment and provided no requisitions are raised, is required to then be advertised. A copy of the application will be served on any person who has an express interest in the land i.e. the registered proprietor/s of the land.
- Where the Registrar of Titles is satisfied with the application and supporting evidentiary requirements, the application will usually then be granted unless a caveat is lodged by the owner or other interested party within 30 days of the application being advertised.
Each adverse possession application very much depends on its own facts and circumstances. If you are seeking to make an adverse possession claim, you must establish the requisite possession and provide thorough evidence of each element on which you rely. Due to the complicated nature of adverse possession applications, legal advice is strongly recommended in pursuing an adverse possession claim or defending an adverse possession claim. Please contact one of our Real Estate Lawyers for further tailored advice or contact our office today on +61 3 9822 8588.