By Phillip Leaman

26 August 2013

Whether you purchase a residential or commercial property, one of the most important things you need to do is measure the land to ensure that the dimensions of the land on the Certificate of Title accurately reflect the physical dimensions of the land you are purchasing. If you find that there is an inconsistency, you may have an issue and there may be land which may be subject to an Adverse Possession Claim.

What is Adverse Possession?

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.

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 do I do if the land does not measure up?

If you have ‘lost’ land, you may need to act quickly to potentially re-claim that land. If you have gained land, it is important to ensure that your claim is protected and that you take steps to ensure that you can ultimately obtain title to the land. In either scenario, we recommend you obtain advice from a specialist lawyer in this area before doing anything.

Even if the discrepancy is not significant it is important to rectify any issues to avoid problems when you decide to sell your property.

How do I make an adverse possession claim?

In summary, you will need to obtain:

  1. A Deed of Assignment of Possessory Rights from previous owners if you have not owned the land for more than 15 years;
  2. Appropriate worded statutory declarations;
  3. A market appraisal of the land being sought;
  4. A survey prepared by a licensed surveyor;
  5. Evidence from disinterested witnesses as to the use and occupation of the land.

We can guide you through the process so that you have the best prospect of a successful outcome.

Can I claim adverse possession against a government or local authority?

In short, the answer is usually no. Claims for adverse possession can no longer be made for land owned by the Crown, the Public Transport Corporation, Victorian Rail Track and since January 2005, Council owned torrens land (although there are potential exceptions).

What if someone is making an adverse possession claim against me?

You need to assess the claim being made and find out about the history of the use of the land to ascertain whether the claim has merit or it should be challenged. If you do nothing, you run the risk that you will lose the land.

What Now?

Tisher Liner FC Law have extensive experience in adverse possession matters (both in making applications to Land Victoria and issuing/defending claims in Court). Phillip Leaman and Jonathan Tisher 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.

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