By Phillip Leaman

21 May 2019

Adverse possession is when a person occupies another’s land for a period exceeding 15 years and can claim title to that land.

There are three main requirements for an adverse possession claim which are as follows:

  1. 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.
  2. Intention – There must be an intention to possess. It is noted that the fencing of the land often suggests the intention to possess.
  3. 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.

Whilst not strictly necessary, enclosure is the best form of evidence of a claim of adverse possession. It is very difficult to make a claim for adverse possession when the land is not wholly or partially enclosed by fencing or buildings. An example of a failed claim for adverse possession where the land was not enclosed by fencing was the Laming v Jennings case in the County Court of Victoria where Tisher Liner FC Law successfully defended the claim for adverse possession.

You can read about that case and our tips on defending a claim here: Adverse Possession: How to Defend a Claim

Can you claim adverse possession without fences?

However, is installing paving on land without any fences (and not preventing the registered proprietor to walk over the land) enough?

Paving has in the past been a factor in some cases which adds to the weight of the intention of a party to adversely possess land. However an English Court of Appeal authority of Thorpe v Frank, just decided (February 2019), has solidified the fact that the act of installing paving on a property without fencing is sufficient to successfully claim adverse possession.

The case involved two units which were side by side. There was a square paved area in front of the claimant’s unit where the claimant sometimes parked their car. Of the square area, half of the area (cut diagonally) was within the claimant’s title and the other half was in the title of the next door neighbour. The claimant re-paved the whole of the square area in the late 1980s.

The Court found that the act of using the land as an owner would expect, namely to install new paving without the consent of the registered owner was sufficient to show an intention to treat the land as if it were the claimant’s own and thereby establish adverse possession of the land. This was despite the fact that the registered proprietor was able to walk across the paved area as a casual trespasser.

This case is likely to be followed by Australian Courts and is not inconsistent with previous authority on acts which can amount to the requisite intention to possess for the purpose of adverse possession.

It is important that if you are considering a claim for adverse possession or trying to defend a claim you seek expert legal advice before you end up in Court.

 

For more information on Adverse Possession and defending a claim, please contact Phillip Leaman or a member of our Adverse Possession Team.

 

Disclaimer
The material contained in this publication is meant to be informational only and is not to be construed as legal advice. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.

Related Articles

View All
Adverse Possession

Get off my land, a guide to defending an adverse possession claim

As appearing in the Law Institute of Victoria Journal in August 2019 an article by Phillip Leaman which explains how to...
Read More
Australia-Israel Legal Advice / Charities & Not-for-Profit / Technology and Start Ups

TLFC – Award Finalist for Law Firm of the Year (Medium Category)

Tisher Liner FC are proud to be nominated as an award finalist in the 14th annual Victorian Legal Awards Medium Law...
Read More
Adverse Possession

Adverse Possession – How to Defend a Claim

TLFC Principal and Business Law Specialist, Phillip Leaman shares his expertise on Adverse Possession in an article...
Read More
Adverse Possession / Business Law / Compulsory Acquisition

Property Law Symposium – Wednesday 07 March

Tisher Liner FC Law Principal and Accredited Business Law Specialist, Phillip Leaman, will be sharing his expertise on...
Read More
Adverse Possession / Planning / Covenants & Easements

Roads – What are they and how do you get rid of them

What are Roads Roads can include streets, rights of way, passages, bridges, footpaths, kerbing and public highways...
Read More
Adverse Possession / Property & Development

Adverse Possession- A Guide to Acquiring Land

1 What is Adverse Possession  Adverse possession is the process whereby title to another person’s real property is...
Read More
Adverse Possession

Have you purchased a property? Did you measure the land? Are there any Adverse Possession issues?

What is Adverse Possession There are three main requirements for an adverse possession claim which are as follows:...
Read More
Adverse Possession

What’s Yours is Mine – Adverse Possession in Victoria

Abbatangelo is one of the leading authorities on adverse possession law but even it leaves many questions unanswered By...
Read More