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Adverse Possession (Vic)

Adverse possession is a doctrine that allows for the transfer of title to land where a person other than the titleholder has possessed the land for some time without the legal owner of the land objecting to their possession. No money or consideration has to be paid for the transfer of title based on adverse possession. However, the person applying for the transfer may be required to pay some fees for the administrative process of transferring the land.

Law is different in each state

In Australia, the laws about adverse possession differ between states.

In Victoria, the time limit relevant to an adverse possession claim comes from the Limitation of Actions Act 1958. Section 8 of this Act disallows an action being brought by a person to recover land fifteen years from the date the right of action to recover the land arose.

Section 60 of the Transfer of Land Act 1958 allows a claim to be made to transfer title to the possessor of land where the requirements of adverse possession are met.

Establishing adverse possession

For a claim for the transfer of title due to adverse possession to succeed, the following has to be shown:

  • That the claimant has had exclusive, open and actual but unauthorised use of the relevant land for a continuous period of fifteen years or more;
  • The adverse possession of the land has not been a secret;
  • The adverse possession of the land has not been by force; and
  • That the claimant had the intention to possess the land.

It is irrelevant whether the actual legal owner of the land was aware of the adverse possession.

What does intention mean?

Evidence of intention to possess the land may be different in each claim relating to adverse possession. However, some actions which have been accepted as evidence of intention in past cases include the following:

  • Fencing the land;
  • The payment of rates for the land;
  • Making improvements to the land such as building on it;
  • Leasing the land to other people; and
  • Grazing cattle or growing plants and crops on the land.

It should also be noted that there are some cases where the claimant’s actions have been found not to be evidence of possession of the land. For example, in the adverse possession case of Tecbild Ltd v Chamberlain (1969) 20 P & CR 633, the occasional use of land by allowing ponies to graze and children to play on it was not enough for the requirement of intention to be met.

When can an adverse possession claim not be made?

There are certain types of land in Victoria over which a claim for adverse possession cannot be made. The Limitation of Actions Act 1958 specifically refers to these types of land, and they include the following:

  • Crown land (section 7 of the Limitation of Actions Act 1958);
  • Rail Track (section 7A of the Limitation of Actions Act 1958);
  • Water Authorities (section 7AB of the Limitation of Actions Act 1958);
  • Council Land (section 7B of the Limitation of Actions Act 1958);
  • Common Property (section 7C of the Limitation of Actions Act 1958).

Making an adverse possession claim

Applications for transfers in title due to adverse possession need to be made to the Titles Office. The documents that will need to be included in such an application include the following:

  • A survey of the relevant property from a licensed surveyor;
  • Declarations from the applicant and other witnesses of proof that there has been the requisite possession and intention to possess; and
  • A valuation of the land.

If the application is successful, a certificate of title for the relevant land will be issued to the applicant.

Disputing an adverse possession claim

If you are the legal owner of land over which a claim of adverse possession is made, it may be appropriate to lodge a caveat over the land. It is a good idea to immediately seek legal advice to determine the best course of action. The onus of proof is on the applicant to make out their case for adverse possession on the balance of probabilities. You can raise facts that may disprove their claim. For example, you may have evidence that you re-entered the land and ejected them during the relevant period. Or, within the applicable period, you may have done something else which disputes their claim of possession, such as removing a fence or other building from the land.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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