Adverse Possession
The Concept of Adverse Possession
Adverse possession permits a person who would otherwise be decried as a “trespasser”, who remains in possession of land for a period of at least 15 years to acquire ownership of that land.
Registered owners of land are expected to be aware of the extent or proper boundaries of their land and if necessary to enforce their rights to exclusive possession of it against any other person, such as an adverse possessor. That includes an action to sue for possession and recovery of land where another person trespasses upon it by taking possession of it or acting as if she or he owns and controls the land to the exclusion of all others.
However, where the registered owner of the land does not, within fifteen years of the date on which another acts to take possession of it, exercise its rights to that land then the registered owner’s right to do so is extinguished. The owner thereby loses the right to recover the land with the result that the “adverse possessor” then becomes entitled to register his or her interest on title to the land.
After that limitation period expires the adverse possessor acquires title without having to do anything further. That said, he or she may have to defend their claim to the land by applying to register the claim on title to the "servient land, or by seeking a Court declaration as to their entitlement to be registered as the owner of the land.
Requirements for Adverse Possession of Land
The following principles apply and must be satisfied in order to establish a claim in adverse possession:
1. The claimant for adverse possession must be proven to have had both factual possession and the requisite intention to possess the land in question.
2. “Factual possession” signifies an appropriate degree of physical control of that land and, importantly, its exclusive possession. Broadly, the claimant must prove that they (if necessary, together with the predecessors in title) has for a period of no less than fifteen years been dealing with the land in question as an occupying owner might have been expected to, and that no one else has done so. The best example of this might be enclosure or fencing off of the area.
3. The claimant must have a demonstrable intention to exclude, in their own name and own their own behalf, the world at large including of course the registered owner. This requires clear and affirmative evidence that the adverse possessor not only had the requisite intention to possess that land but for all intents and purposes made that clear by her actions over the period.
4. The claimant (and, if necessary, their predecessors in title) must for all intents and purposes have treated themself to be the true owner. Actual possession and intention to possess land can be attributed to predecessors in title and (as with a claim for prescriptive easement) periods of possession of the land may be aggregated.
5. The claimant is required to produce compelling evidence of this intention to possess.
Therefore, not only is it critical that the claimant prove their intention to exclude the world at large, including the registered owner, from the land. It is also essential that they prove (if necessary, together with the predecessors in title) their actual exercise of exclusive control over the affected land. Once again, enclosure is among the best evidence of that.
Application Process
An Application must be submitted to Land Use Victoria with the following documents must be obtained:
A plan of survey (if applicable) or an aerial photograph;
Statutory Declaration by the applicant with a description of the land and the relevant criteria in support of exclusive possession;
Disinterested Witness Statutory Declarations from two persons who can attest to the exclusive use and possession of the land for the previous 15 years;
If applicable – where you have not been in possession of the land for the 15 year period, a Statutory Declaration from the previous owner confirming the exclusive possession and use of the land; and
Evidence from the relevant Council with particulars of who has been paying the rates for the previous 15 years.
To establish whether you have a tenable claim in adverse possession, or to defend a claim being made against your land, contact our office to arrange a consultation.