Paving the way to land ownership: How to claim adverse possession without fences
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:
- 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.
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.