Adverse Possession

TLFC Law’s Adverse Possession Lawyers are able to provide expert assistance to help you either defend or make a potential claim for adverse possession.

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. We have acted for a significant number of land owners and those making claims.

Principal Phillip Leaman and TLFC Law acted for the Abbatangelos’ in Victoria’s leading case authority in this area of law for successfully making an adverse possession claim (Abbatangelo v Whittlesea City Council) and for Laming in Victoria’s leading case authority in this area of law for successfully defending an adverse possession claim (Laming v Jennings) and in the Court of Appeal defending a claim for an easement of a backyard by lost modern grant.

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; or
• The deliberate enclosure or use of another person’s land without that owner’s permission.

Tisher Liner FC Law’s Adverse Possession Lawyers have extensive experience in adverse possession claims in Victoria and are experts in the field.

We are able to help you with:

• 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.

Please contact principal Phillip Leaman for advice and assistance in relation to adverse possession claims.

Do you have a claim for adverse possession or is a claim being made against you? Find out what to do in 5 minutes by completing our no obligation adverse possession enquiry online interview. It will give you some general guidance straight away and is available free of charge 24 hours a day. It is the first online enquiry for adverse possession claims in Australia.

Try our free no obligation adverse possession online enquiry now by clicking the start button below:

Start Adverse Possession Enquiry

Our Adverse Possession Resources

Check out our Frequently Asked Questions on Adverse Possession by clicking here.

We also have a number of other resources that may assist you when dealing with an adverse possession claim.

• 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.
• To read 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.
• To read our article published as a feature article in the Law Institute Journal titled “Get off my land” A Guide to defend an adverse possession claim and potentially the death of easements by lost modern grant written by Phillip Leaman please click here.

Do you have further questions?

Please contact principal Phillip Leaman for advice and assistance in relation to adverse possession claims.

Read on for answers to a selection of our frequently asked questions on adverse possession. More frequently asked questions on adverse possession can be found by clicking here.

1 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.

The key preliminary questions to ask are as follows:

• How long ago did you purchase or take possession of the property?
• Do you have a survey of your land from when it was purchased?
• Do the boundaries on your land match up with the boundaries set out on your title?
• Are you aware of anyone making an adverse possession claim against you?

2 What do you do next?

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 from one of our adverse possession lawyers 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.

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.

3 What are the requirements for a claim?

There are three main requirements for an adverse possession claim which are as follows:

1. 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.
2. Intention – There must be an intention to possess. It is noted that the fencing of the land often suggests the intention to possess.
3. 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.

4 Can I make a claim for adverse possession against council land?

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. However, sometimes land which Council say they own is actually registered in an original subdivider’s name which may be able to be claimed by adverse possession.

5 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 and our article featured in the Law Institute Journal of Victoria here. 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.

Please contact principal Phillip Leaman for advice and assistance in relation to adverse possession claims.