Adverse Possession FAQ
Please see below a list of questions we are often asked by our clients in respect to adverse possession and title boundary issues.
We also have a number of other resources that may assist you when dealing with an adverse possession claim:
- For information about Councils and Road Discontinuances, please click here.
- To find out more about recent changes to the Fences Act which allows a party to claim adverse possession in response to a Fencing Notice, please click here.
- To view a seminar paper on Acquiring Land by Adverse Possession, click here.
- Our article published as the cover story in the Law Institute Journal titled “What’s Yours is Mine, A Guide to Adverse Possession” co-written by Phillip Leaman and Jonathan Tisher can be found here.
Our adverse possession lawyers have extensive experience in adverse possession and road discontinuance matters including making and defending applications to the Court and to Land Victoria. Please contact Phillip Leaman for advice and assisstance.
What is Adverse Possession?
There are three main requirements for an adverse possession claim which are as follows:
Actual Possession – You will need to prove actual possession. Actual possession must be open and peaceful and not secret or by force. It must not be with the consent of the owner.
Intention – There must be an intention to possess. It is noted that the fencing of the land often suggests the intention to possess.
Time Limitation – In Victoria, in order to adversely possess another party’s land, you must be in possession of the land for a minimum of fifteen (15) years.
Section 8 of the Limitation of Actions Act 1958 (the Act) provides that no action shall be brought by any person to recover land after the expiration of 15 years from the date on which the right of action accrued. Section 18 of the Act provides that at the end of that period, the person’s title to the land shall be extinguished.
Can I claim land owned by Council?
In short, the answer is usually no. Claims for adverse possession can no longer be made for land owned by the Council if it is Torrens land. However, if the land is in the Council’s name and is general law land then you can make a claim for adverse possession. There is also the potential for a claim for land controlled by Council which is a road no longer in use.
If the Council just recently became the registered proprietor, a claim may also be possible.
Can you adversely possess a road?
Yes, but this will depend on the circumstances. If the road has not been in use for more than 30 years you can make an application to have the road encumbrance removed. Otherwise, any claim for adverse possession will be subject to the road encumbrance.
Can you adversely possess a park or a reserve?
Generally no, unless the park is not registered in the name of the crown, Council, authority or is general law land owned by the Council. However, we can review the ownership of the land and advise further.
There are some sections labelled as a reserve which can be claimed if the Council is not the registered owner.
How do I make an adverse possession claim?
There are three ways a claim can be made. Firstly, by making an application to Land Victoria and secondly by making an application to the County Court of Victoria and thirdly via the Magistrates’ Court of Victoria under the Fences Act. It is important that when making a claim.
Most clients will make an application to Land Victoria rather than pursing legal proceedings in the County Court of Victoria. In summary, you will need to obtain:
A Deed of Assignment of Possessory Rights from previous owners if you have not owned the land for more than 15 years;
Appropriately worded statutory declarations;
A market appraisal of the land being sought;
A survey prepared by a licensed surveyor;
Evidence from disinterested witnesses as to the use and occupation of the land.
We can guide you through the process so that you have the best prospect of a successful outcome.
As at 1 October 2014, you may make a claim in the Magistrates’ Court of Victoria if it is in conjunction with a fencing act matter. First, a fencing notice must be made and proceedings issued against you. You can then seek the Court make a determination of the location of the fence pursuant to the Fences Act.
What do I have to do if I’ve purchased a property and the title does not measure up the same as on the plan on my certificate of title?
If you have ‘lost’ land, you may need to act quickly to potentially re-claim that land. If you have gained land, it is important to ensure that your claim is protected and that you take steps to ensure that you can ultimately obtain title to the land. In either scenario, we recommend you obtain advice from a specialist lawyer in this area before doing anything.
Even if the discrepancy is not significant it is important to rectify any issues to avoid problems when you decide to sell your property.
Can I claim adverse possession against a government or local authority?
In short, the answer is usually no. Claims for adverse possession can no longer be made for land owned by the Crown, the Public Transport Corporation, Victorian Rail Track and since January 2005, Council owned Torrens land (although there are potential exceptions).
What if someone makes and adverse possession claim against me?
You need to assess the claim being made and find out about the history of the use of the land to ascertain whether the claim has merit or it should be challenged. If you do nothing, you run the risk that you will lose the land.
What is a Deed of Assignment of Possessory Rights?
This is a formal document which assigns the interest in land adversely possessed to a subsequent owner. These are required if your possession of the land is less than 15 years.
Can I make an adverse possession claim if I’ve just purchased the land or have owned the land for less than 15 years?
You may still be able to make a claim, however, you will need to obtain Deed of Assignments of Possessory Rights for all previous owners which make up the 15 years of possession. In addition, you will need evidence which can satisfy the tests for adverse possession for the whole of the 15 year period. A lot of clients don’t have adverse possession of 15 years in their own right. We can assist in working through the issues and assess whether a claim is possible.
What should I do if someone has possessed my land?
You should obtain legal advice from a lawyer who has expertise in the area of adverse possession urgently. It is important to get advice so you do not prejudice any claim you may have.
Can I defend a claim of adverse possession of my land?
This will depend on the circumstances of your case and whether the applicant is able to prove the requisite elements of adverse possession of the relevant land. We can review the evidence and application and advice on the likely success of a claim against your land.
What is a NICO plan of Subdivision?
A NICO plan is a subdivision or consolidation by the registered proprietors of two or more titles held in different ownership. A NICO title is created from a lot on a plan of subdivision or consolidation where the land is owned collectively by different registered proprietors of former titles. A plan of subdivision or consolidation changes boundaries; it does not alter proprietorship. As a plan of subdivision or consolidation does not transfer proprietorship, it is necessary to resolve the
proprietorship of the NICO titles by means of a transfer of land. When transferring a NICO title, all registered proprietors of the new lot must join in as transferors.
What do I do now?
Tisher Liner FC Law have extensive experience in adverse possession matters (both in making applications to Land Victoria and issuing/defending claims in Court). Phillip Leaman and Jonathan Tisher acted for the Abbatangelos’ in Victoria’s leading case authority in this area of law (Abbatangelo v Whittlesea City Council). If you have a potential claim or need to fight one contact us for expert assistance.
How do I get more information?
Check out our publications on this page on adverse possession. For example, our article which appeared as the cover story on the Law Institute of Victoria Journal titled “What’s Yours in Mine, A Guide to Adverse Possession” co-written by Phillip Leaman and Jonathan Tisher.
Contact our Adverse Possession Lawyers Phillip Leaman and Jonathan Tisher.