Tisher Liner FC Law are experts in adverse possession matters and acted for the successful party in Victoria's leading case in the area and have helped a significant number of clients claim land occupied by adverse possession.
As adverse possession lawyers in Melbourne we have extensive experience in:
- Section 60 of the Transfer of Land Act adverse possession applications to Land Use Victoria;
- Section 99 of the Transfer of Land Act amendment to title boundary area or position applications to Land Use Victoria;
- Section 103 of the Transfer of Land Act amendments to correct land description in the Register to accord with plan applications to Land Use Victoria;
- Section 26p of the Transfer of Land Act applications for deletion of warnings relating to title amendments to Land Use Victoria;
- NICO (Not in Common Ownership) plan of subdivisions;
- Applications by Owners Corporation for adverse possession claims;
- Applications by developers for adverse possession and removal of road and carriageway encumbrances;
- Making and defending claims in the County Court of Victoria and Supreme Court of Victoria;
- Making and defending claims in the Magistrates’ Court of Victoria under the Fences Act.
Examples of adverse possession may include:
- A fence not in alignment with the title boundary;
- A building or structure placed over another person’s title boundary;
- the blocking off of a old road or lane; and
- The deliberate enclosure or use of another person’s land without that owner’s permission.
Do you have a claim against your neighbours? Do they have a claim against you?
If you did not measure and survey your land when it was purchased to confirm the physical boundaries correspond with what is shown on title, you may already have an adverse possession claim against a neighbour, or a neighbour may have an adverse possession claim against you.
- Do you have a claim or you are not sure if you have an adverse possession claim?
- Do the boundaries on your land match up with the boundaries set out on your title?
- Is someone making an adverse possession claim against you?
What to do
You should act quickly when an adverse possession claim is made against you or when circumstances arise which may impact a potential adverse possession claim you have against another party. Once an adverse possession claim is made, the true owner may attempt to retake control of the property. If possession is interrupted within 15 years, the adverse possession claim may be defeated.
You should obtain legal advice immediately to ensure that your adverse possession claim is assessed properly and that you take all necessary steps to enforce or defend your claim. Delaying action on a claim could be severely detrimental to your legal position.
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.
What are the requirements for a claim?
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.
Even if you have just recently purchased your property, 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.
Claims for adverse possession can no longer be made for land owned by the Crown, the Public Transport Corporation, Victorian Rail Track, water authorities and, since January 2005, council-owned Torrens land.
The leading case/authority in Victoria on adverse possession is the case of Abbatangelo v Whittlesea City Council. Tisher Liner FC Law acted for Mrs Abbatangelo (the successful party) in the initial case and at appeal in the Court of Appeal.
Claims for adverse possession can be made via Land Use Victoria, the County Court of Victoria and now under the Fences Act (as at 1 October 2014) in the Magistrates’ Court of Victoria in response to a fencing notice.
How to defend a claim of adverse possession?
Read our article on defending an adverse possession claim which has some useful tips and defences which may be able to be raised in order to defeat a claim for adverse possession.
It may be that the land has not been occupied for a period greater than 15 years or there has been an acknowledgement of title made by the person claiming the right. Some research on the land and obtaining legal advice from an expert may mean the difference between whether you can successfully make or defend an adverse possession claim.
Tisher Liner FC Law Lawyers have extensive experience in adverse possession claims in Victoria and are experts in the field.
We also have a number of other resources that may assist you when dealing with an adverse possession.
- 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 guide 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 Use Victoria. Tisher Liner FC Law 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. Please contact Phillip Leaman for advice and assistance in adverse possession and encumbrance removal matters.