Adverse Possession

gco_image_SurveyPlanImageNote 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, 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.

 

Does the 15 year period apply only to my period of possession of the claimed land?

No, if you can establish a period of at least 15 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 10 years (or longer), then you can join the two periods together to make up the required 15 years.

 

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 legal and out-of-pocket expenses associated with the application to the Titles Office.

 

How do I go about making a claim?

The application has to be 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 declarations from the applicant and other witnesses 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
  • advertise and 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. Solicitors’ costs will range from about $2,500 up to $10,000 for a more difficult application.

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 – $1,000.
  2. Surveyors fees – $3,000.
  3. Advertising fee – $450 (as of 2015 abolished).
  4. Contribution to the Consolidated Fund (not always required) – varies but up to .5% of the value of the claimed land

(There may be other fees depending on the nature of the application made.)

 

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
  • 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 not a specific intention to exclude the person who has the legal title to the land
  • 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 within the 15 year period to break the chain of adverse possession

 

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 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.

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Peter Gauld.

The Principal, Peter Gauld LL.B, has been a practising solicitor in Melbourne, city and suburbs, for thirty years.

He has a keen interest in the legal issues that affect the senior citizen.

He is, amongst other things, a member of the Elder Law Section of the Law Institute of Victoria and a volunteer Community Visitor for the Office of the Public Advocate.

He holds a Bachelor of Laws degree from the University of Melbourne, graduating in 1978.

He has a background in litigation.