Fence Disputes and Adverse Possession
Fences not on the correct title boundary can cause problems when you want to develop or sell your land and can sometimes prevent developments from reaching their full development potential. It is important to rectify any title issues prior to embarking on the planning or sale process to avoid issues in the future.
There are two ways you can obtain title to property which you have adversely possessed:
- Make an application to Land Victoria; or
- Seek orders from the County Court of Victoria or Supreme Court of Victoria pursuant to the Limitation of Actions Act 1958 (Vic).
As at 1 October 2014, there is a third way, via an application under the Fences Act to the Magistrates’ Court of Victoria.
The Victorian Parliament has provided jurisdiction to the Magistrates’ Court of Victoria to hear and determine adverse possession claims (but only when a Fences Act compliant has been filed and the land the person is claiming title by possession to is land on which fencing works that are subject to the complaint are to be carried out. Under the Act, the Magistrates’ Court may make an order in relation to who is entitled to title by possession of that part of the adjoining lands on which the fencing works and any subsidiary works are to be carried out. The Act will not affect a party’s right to pursue an application under the Limitation of Actions Act (via a proceeding in the County Court of Victoria) or the Transfer of Land Act (via an application to Land Victoria).
Parliament has not legislated the principles with which a Magistrate must determine the applications. In our view, the proofs required to prove adverse possession will still be on the same principles outlined in case law arising from the Supreme Court of Victoria. For an explanation of the leading case in the area, Abbatangelo v Whittlesea City Council, in which Tisher Liner FC Law acted for the successful party, in the Victorian Supreme Court of Victoria adverse possession case Abbatangelo v Whittlesea City Council. Phillip Leaman and Jonathan Tisher are co-authors of the Law Institute of Victoria cover story “What’s Yours Is Mine, Adverse Possession in Victoria”.
The amendments to the Fences Act also makes changes to streamline and clarify the process by which parties can resolve disputes concerning boundaries and fences and issues arising from the repair and replacement of fences. The amended Act includes a new procedure to claim your neighbour’s share of costs of a new fence.
If you have a fence not in alignment with your title contact us for advice to ensure that your legal position is protected to the maximum extent permitted by law.
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.
Should you wish to discuss this matter or for comments please do not hesitate to contact Phillip Leaman of our office.
To view our FAQ page on Adverse Possession please click here.