Coulter Roache

What is Adverse Possession?

Adverse Possession is a general law principle which allows a person(s) to claim title to land not owned by them in instances where they have possessed the land, to the exclusion of its true owner, for in excess of 15 years.  The land must be possessed exclusively by the person claiming title.  Furthermore, the Possession must occur without the consent of the true owner of the land.

Adverse possession often arises in instances where fences or buildings encroach over a title boundary or where persons have fenced off and used areas of land that do not belong to them.  It is possible to adversely possess whole parcels of land however in these instances it is often difficult to prove exclusive possession, for in excess of 15 years to the exclusion of the land’s true owner.

Often, adverse possession will rear its head when a property has been sold and it brought to the vendor or purchasers attention that the physical boundaries do not match the title boundaries.  In these instances, it is important to obtain legal advice to ensure that appropriate steps are taken in order to secure your adverse possession rights, or alternatively to prevent a person or neighbour from claiming your land.

Applications can be made to Land Use Victoria or the courts for an order vesting title to the adversely possessed land in the applicant.  The type of application used and approach taken will depend on the unique circumstances of each case.  Accordingly, it is recommended that you seek the advice of one of our lawyers if you believe that you may have a claim for adverse possession, or if a claim has been made against your land.

Our Property & Development team have extensive experience in advising clients on adverse possession applications. We understand that each application turns on its own unique circumstances and we tailor our advice with this in mind in order to meet your objectives.  Whether you are seeking to make an adverse possession claim or have received notice of an adverse possession claim which will impact your property, we can review your individual circumstances and provide you with advice on the likelihood of success of any claim.  We can also assist with drafting and lodging the necessary applications to either make a claim for adverse possession, or defend a claim that has been made against your land.

What if I have not possessed the land for more than 15 years?

It is still possible to make a claim over land that you have not possessed in your own personal right for 15 years or more.  In these instances, a Deed of Assignment of Possessory Right can be used to show that possession of the land has been transferred to you by other persons who have possessed the land for a period sufficient to satisfy the 15 year threshold.

Our Property & Development team have extensive experience in drafting and preparing Deeds of Assignment of Possessory Right and can assist you in establishing the ‘chain of possession’ capable of satisfying the 15 year requirement for adverse possession.

What do I do if someone has made a claim against my land?

The type of application that a person has lodged will usually dictate how the claim is defended.  In any event, if someone has lodged a claim against your land, you will receive a notice from Land Use Victoria, the Magistrates Court of Victoria or the claimant’s lawyer.

If you receive a notice setting out that someone is claiming title to your land via possession, it is extremely important to seek urgent legal advice.

If the notice comes from the Office of Land Titles, the claim can be defended via lodging a caveat against the certificate of title for the claimed land. This then notifies the Land Use Victoria that you intend on defending the claim. It is extremely important that you seek URGENT legal advice if you receive a notice in the mail.  There is usually only a 30 day timeframe in which a caveat can be lodged before an order is made.  If a caveat is not lodged within the 30-day time frame, you will have to apply to the County Court of Victoria to defend the claim.

If you receive a notice from the Magistrates Court, you will need the assistance of a lawyer to file your defence or counter claim. There are various time constraints surrounding the filing of defences and counter claims and therefore it is recommended that you seek urgent legal advice if you receive a notice from the Magistrates Court of Victoria.

What Land can’t be adversely possessed?

It is not possible to claim adverse possession over any of the following types of land:

  • Roads or footpaths;
  • Railways or land owned by a rail corporation;
  • Any land owned by a water authority;
  • Common property owned by an Owners Corporation (formerly known as a body corporate)
  • Crown Land;
  • Land owned by a local council;
  • Parks and reserves; or
  • State forests or National parks.

Obtaining legal advice

Obtaining legal advice is crucial if you intend on lodging or defending a claim for adverse possession.  As mentioned above, there are a range of different applications available, depending on the circumstances of the intended claim.  It is therefore important that you seek the advice of a lawyer to ensure that the correct application is lodged.

In addition to the above, extensive legal documentation is required to establish evidence of possession. In most instances, a series of statutory declarations are required from the applicant and at least two (2) dis-interested witnesses.   Based on the complexity of evidence required to prove adverse possession, it is important to seek legal assistance to ensure that your application reaches the evidentiary burden required for a successful claim.

In the instance that you intend on defending a claim, it is important that you seek the advice of a lawyer to ensure that a caveat is lodged in time and/or a defence filed in the relevant court.

Do I need to go to Court?

In some instances, it may be necessary to go to court.  If you have lodged a claim and it becomes contested at the County Court of Victoria, you shall be required to attend Court and give evidence in support of your claim.  Alternatively, if you choose to defend a claim via seeking an order of the County Court, you will need to attend Court to give evidence on why adverse possession should not be allowed.

In some instances, adverse possession can be claimed in conjunction with a fencing dispute at the Magistrates Court of Victoria.  Similar to the above, you may be required to attend Court in this instance to give evidence either in support of or against the claim for adverse possession.

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