Adverse possession

Adverse possession is a principle that allows a person to claim ownership over another person’s property without paying for it, if they have been occupying it without the owner’s permission. If the person claiming adverse possession is successful, then the owner’s right in the property is extinguished and the adverse possessor becomes the owner of the property.

Time and limitation

For an adverse possession claim to be successful in Victoria, you will need to have been in possession of the land for a minimum period of 15 years.  This is reflected in Section 8 of the Limitations of Actions Act 1958 (LAA Act) which provides that no action shall be brought by any person to recover land,  fifteen years from the date on which the right  to recover the land arose.  Section 18 of the LAA Act provides that at the end of that period, the person’s title to the land shall be extinguished.

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

How is Adverse Possession established?

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

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

It is important to note that if there are multiple possessors over the 15 years, each of their separate periods can be added together to extinguish the true owner’s title to the land providing no abandonment has occurred.

Evidence of intention to possess the land may differ for each claim, but some examples provided include fencing of the land, payment of rates, making improvements to the land such as building on it, leasing the land to other people, grazing cattle or growing crops on the land.

Under the LAA Act there are certain types of land which are prevented from adverse possession claims being made which include land owned by council, the Crown, Rail Track, Water authorities, and Common property.

What documents are required to submit a claim?

Applications for transfers of 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 requisite possession and intention to possess; and
  • A valuation of the land

Survey based and non-survey based applications

Survey based applications

Surveys are required in if the land does not meet the requirements of a non-survey based application.

A survey must be carried out by a licensed surveyor and include:

  • A plan of survey
  • An abstract field report including description of the land
  • A surveyors report

The surveyor may be required to update the survey if it is more than 2 years old or there is evidence to the Registrar that the land occupancy has changed since the date of the last survey.

Request to waive survey

Where a survey is required, you can make an application for the Land Victoria to waive the survey. Aerial photography may be accepted in lieu of the survey and can be obtained from commercial suppliers of aerial photography.

A survey will only be waived where the land is a whole transferable parcel of land with boundaries already known by Land Victoria.

Statutory Declarations

As a claimant you will be required to make a statutory declaration addressing certain requirements when completing a typical adverse possession application:

  • disclose how you came into possession of the land;
  • establish that the possession has been exclusive, continuous and without interruption;
  • state the use of the land and who has occupied the land;
  • describe how the land has been enclosed or how your exclusive possession has been demonstrated if the land is unfenced;
  • detail any improvements you have made to the land;
  • state how the land is accessed;
  • highlight the value of the land (usually done so by gaining an appraisal);
  • indicate who has paid the rates for the land; and
  • declare that you have not acknowledged the title of the true owner.

Evidence from prior possessors

Where there has been a previous adverse possessor within the past 15 years in your chain of adverse possession against the true owner, then they too will be required to make a statutory declaration to the same effect.

Disinterested witness statutory declaration

A statutory declaration must also be submitted from a ‘disinterested witness’ , such as a friend or neighbor, where they will be required  to provide supporting details on the following.

  • Identify the land;
  • Establish that they have know the land for at least 15 years detailing how they have known the land;
  • Detail the occupation and use of the land
  • State how the land can be accessed;
  • Describe how it is enclosed; and
  • Detail the improvements that have been made.

Additional evidence

Alongside the statutory declarations made by you, any prior possessors and your ‘disinterested witnesses’, additional evidence which will be required includes:

  • Rating history of the land from the council which identifies the land (including and plan of survey) and the particulars of those who have paid the rates for the past 15 years;
  • Evidence from your lawyer in the form of a statutory declaration and solicitors certificate;
  • Any searches including a general law search if applicable.

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

The property lawyers at Robertson Hyetts are skilled in preparing adverse possession applications and assisting you with collecting and preparing the appropriate evidence, including, introducing you to estate agents and surveyors with the necessary experience and expertise, to ensure your adverse possession claim is a success.

Call us today in Bendigo on (03) 5434 6666 or in Castlemaine on (03) 5472 1588.