Adverse Possession

 

Note that the information appearing on this page applies to the State of Victoria, Australia. The law relating to adverse possession in Australia is State based.

 

Who will be interested in the information on this page?

Anyone who believes they have been in possession of, control of, land that they do not legally own, over a period of years (fifteen or in some instances thirty years), and wish to legally acquire title to that land.

Anyone who has lost possession of, control of, land that they own and have concerns about regaining possession.

 

What is adverse possession?

In Victoria land can be acquired by the mere act of possession over a period of years.

Such land does not necessarily have to be fenced off into land owned by someone else – the law requires “dominion” over the land. Also, the land does not necessarily have to be adjacent to land owned by the person claiming adverse possession (although usually it is).

The relevant period of possession is fifteen years (and sometimes thirty years).

 

Does the fifteen year period apply only to my period of possession of the claimed land?

No, if 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, the claim can be successfully made. For example, if you have owned a property (with adversely possessed land enclosed within it) for five years and your predecessor in title owned the property for ten years (or longer), then you can join the two periods together to make up the required fifteen years.  You will need to obtain a declaration from the prior owner/s about the possession – these declarations form part of the application.

 

What type of land does the usual application involve?

The great majority of claims are for strips and slithers of land usually created by misaligned fences encroaching onto neighbouring property or rear or side rights-of-way.

Accordingly, if you have had possession of/dominion over a piece of land for 15 years or longer, adverse to the interests of the true legal owner, then you may be deemed to have acquired that land by adverse possession.

 

Is adverse possession of any land possible?

No, you cannot make an adverse possession claim against land owned by a council, the Crown and various other public corporations.

It is accordingly important as a first step to establish the owner on the title to the land in question.

 

Do I have to pay anything for land adversely possessed?

No, you will become the owner of the land by the mere act of possession, which means, legally, that the title of the true owner is extinguished. You do not have to pay the true owner anything. You will have to pay survey, application and legal fees, and out-of-pocket expenses associated with the application to the Titles Office.  Note that stamp duty will sometimes be assessed on the acquired land.  However, if you paid stamp duty when you acquired the land, and the adversely possessed land was included in that purchase/you in fact intended to purchase the adversely possessed land (deliberately or unwittingly), which is usually the case, stamp duty will not be assessable.

 

How do I go about making a claim?

The application is, in the great majority of cases, made to the Titles Office*. These applications are quite complicated. It is usually necessary to do the following (but applications can vary a lot):

• obtain a survey from a licensed surveyor
• obtain a letter from the municipality (and sometimes other authorities) stating if it has any “assets” in the land claimed
• obtain declarations from the applicant and other witnesses (including a disinterested witness – in some cases) as to the factual background of the possession over the required period
• obtain a valuation of the land in question (not necessarily a sworn valuation)
• prepare a formal Application
• display the intention of the Titles Office to make the (vesting) order

The Titles Office has guidelines for adverse possession applications but these guidelines emphasise that there are no strict rules about how a claim should be made, and if one or more of the usual requirements cannot be met, the application may nevertheless be successful.

 

What does it cost to make the application?

Because adverse possession applications are usually quite complex it is almost always necessary to engage a solicitor experienced in this area. Our standard fees range from $3,500 for the very straightforward applications, to $4,500 for the more difficult applications.  Complexities sometimes occur and this can increase fees.

There will also be various out-of-pocket expenses as follows (all are approximate as they can change from case to case and from time to time):

1. Titles Office application fee – $665.90 (2023-2024).
2. Surveyors fees – $4,000.
3. Advertising fee – $450 (as of 2015 abolished).
4. Pexa (online electronic conveyancing platform) fees – applications are now lodged on this platform – under $100.
5. Contribution to the Consolidated Fund (not always required) – varies but up to .5% of the value of the claimed land (rare these days)

(There may be other fees depending on the nature of the application made.  See also our note above about stamp duty sometimes being applicable – but not often.)

 

What is the end result of a successful adverse possession application?

A certificate of title to the claimed land will be issued in the applicant’s name.

 

A summary of some salient features of adverse possession claims:

• the possession of land to the exclusion of all others is the important principle – the possession does not necessarily have to be by way of fencing or for that matter other physical boundaries – but fencing is the best evidence of possession
• the land being claimed does not have to be adjacent to land owned by the claimant
• there must also be an intention to possess the land and have exclusive use of that land, but it is not necessary to actually know that you are possessing contrary to the interests of the true owner
• there cannot be adverse possession against a council or shire, the Crown and some other statutory bodies
• often the legal owner of the claimed land is no longer in existence, or cannot be found
• if there are perceived difficulties with a formal adverse possession claim, there is nothing preventing the claimant from offering to purchase the land from the owner (if the owner can be found)
• the legal owner’s title is extinguished after a period of appropriate adverse possession – the application to the Titles Office is in the nature of a formalisation of this legal position
• the legal owner only has to retake possession or acknowledge ownership within the fifteen year period to break the chain of adverse possession
• Adverse possession claims, if all the standard proofs are in place, are usually successful; and they are difficult to defeat by true owners

 

An interesting adverse possession case:

In one of the most prominent streets in Hawthorn a person had been renting a house on a large block of land. This person lost contact with the owner who resided overseas, and eventually stopped paying rent (there was no one to pay it to). After the relevant period of years elapsed an adverse possession claim was made and was successful. This person is now the legal owner of a house and land worth several million dollars.

 

 

* If adverse possession arises in a fencing dispute and application is made to the Magistrates’ Court for determination of a fencing issue, the Magistrates’ Court now has the jurisdiction to decide adverse possession claims.  See section 30E of the Fences Act 1968 (Vic.). This jurisdiction was introduced in 2014 and it is currently uncertain as to how the Magistrates’ Court will deal with these claims and what proof of adverse possession will be required.

*Sometimes applications can be made directly to the County Court.  This is more expensive, but it is necessary in limited circumstances, for instance if you don’t think you can succeed by making an application to the Titles Office.