Owners know your rights and potentially save $$$

We have come across many clients who have recently received correspondence from their local Council (or lawyers acting for their local Council) inviting them to purchase the part of land at the rear of their property which is within their fence line which is not on their title plan (i.e. land which is currently noted on title as a road/old laneway/reserve) and for which is currently not in the Council’s name. Usually this is land which was designated as a road, laneway or reserve in the original subdivision of the land in the 1900s but has over the years been fenced in within the properties abutting the section of land and has not, usually for over 30 years (and in most cases longer) never been used as a road, laneway or reserve.

In the letter from the Council/their lawyers they state that the client can purchase the land from the Council for a fee (which is usually a estimated market value of the claimed land and could be many tens of thousands of dollars in some cases more than $50,000) and half that price if the client has 15 years occupation of the land. The Council also requires the client to pay the Council’s legal costs, several thousand dollars to consolidate the client’s land and the claimed land and various other costs if they want to proceed with buying the land from the Council.

What the Council/their lawyers fail to say is that if the owner (including their previous owners) have over 30 years of occupation of the land and the road/laneway/reserve which is part of their property and that land is currently not in the Council’s name, then the owner may be able to make a claim for adverse possession now with Land Victoria and not pay the Council anything.

If a land owner has not owned the subject property for more than 15 years, they still may be able to make a claim if they can track down the previous owners and obtain an assignment of their rights and find someone who can attest to the fences being in the same location for more than 30 years (usually a neighbour, family friend).

In order to claim adverse possession of the subject land (and not pay anything to the Council), a land owner would need to obtain a survey and surveyor’s report, pay any legal costs and disbursements they incur and pay the application fee to Land Victoria. Whilst a land owner would incur some expense in this process, it is likely that the total costs incurred by the land owner would be substantially less than the amount which the Council has offered to sell the land, particularly as the land owner would not need to pay the costs of consolidation or the council’s legal costs.

We recommend that clients do not contact the Council or their lawyers to provide them any information, access or admissions without obtaining legal advice from a qualified lawyer who specialises in adverse possession.

Land owners must act quickly as once the road has been discontinued and transferred into the Council’s name, the owner’s rights to claim adverse possession against any land not already in the Council’s name may be lost forever and the owner’s only alternative may be to buy the land (if the Council decides to sell the owner the land).

Phillip Leaman and Tisher Liner FC Law have substantial experience in adverse possession matters and compulsory acquisition claims and has an extensive knowledge of these areas of law. Phillip Leaman acted for the successful party in the leading Victorian Supreme Court of Victoria adverse possession case Abbatangelo v Whittlesea City Council and is co-author of the Law Institute of Victoria cover story “Whats Yours is Mine, Adverse Possession in Victoria”.

Should you wish to discuss this matter or for comments please do not hesitate to contact Phillip Leaman of our office.