By Phillip Leaman

1 June 2021

We have assisted a number of lot owners and owners corporations making adverse possession claims (and defending them).

Whilst lot owners are unable to make a claim for adverse possession in respect to common property claims can still be made in respect to:

  • common property by third parties (such as neighbours or other parties who are not lot owners);
  • private lot property (by other lot owners or neighbours or other parties);
  • land which is not part of the Owners Corporation’s plan of subdivision (such as land adjacent to the plan of subdivision land, namely land which is hiatus or neighbour’s title land).

 

Whether the claim is by a lot owner or an Owners Corporation, the process is the same. The claimant must have occupied the land for a period exceeding 15 years or more. Such claims can be assigned by previous owners so the current owners can acquire the rights from their predecessors in title.

 

The claimant must have exclusively occupied and controlled the land to the exclusion of all others (including the paper title owner) and the occupation must not have been with the consent of the paper title owner (i.e. with their permission or pursuant to a lease or licence).

 

The claim can be made (providing there is no dispute) at Land Use Victoria using an administrative process. We provide fixed fees for claims made this way (excluding any matter which ends up in a dispute) to provide claimants certainty as to the cost of the claim.

 

An Owners Corporation can resolve, by way of an ordinary resolution to make a claim for adverse possession. However, if the claim is in dispute and needs to be made in Court (such as the Magistrates’ Court of Victoria under the Fences Act or through the County Court of Victoria) then the Owners Corporation must first obtain a special resolution prior to issuing legal proceedings.

 

For detail on how a claim can be made, whether a claim is likely to be successful and some frequently asked questions on adverse possession check out our comprehensive adverse possession page. Our website also has a free interactive adverse possession enquiry chatbot. The chatbot allows someone to answer a series of questions to give you an idea whether or not a claim is likely to be successful. The chatbot is free and available 24/7.

 

Need Advice ?

Phillip Leaman is one of the leading lawyers in Victoria on adverse possession and can assist you with making or defending a claim.

 

Phillip Leaman, principal of the Owners Corporations practice group of Tisher Liner FC Law and his very experienced team can provide assistance to owners corporations, committees, lot owners and managers in a range of owners corporations legal matters.

 

We believe Owners Corporations want to maintain peaceful, functional living environments for owners. Our mission is to provide a fresh perspective on resolving legal disputes and to inspire Owners Corporations to achieve outcomes that preserves the value of assets and restores harmony. We are expert Owners Corporations lawyers.

 

For advice or assistance, please contact Phillip Leaman on 03 8600 9314 or by email pleaman@tlfc.com.au.

 

To see earlier spotlights on the amendments check out our website. Our website also has more information on Owners Corporations as well as a range of helpful blogs and podcasts.

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