What is adverse possession?
When you purchase a property, you receive the title for that parcel of land. Adverse possession is an act to claim land that does not belong within your registered title.
Common examples of adverse possession include inadvertently fencing off a neighbour’s land without their consent or knowledge, or restricting public access to an unused laneway behind your property.
Adverse possession claims are treated differently for Crown land. Note also that Territories do not allow for adverse possession claims.
Making a claim
Claiming adverse possession can be a long and complex process. Below are some requirements laid out by the Titles Registry of that State which must be satisfied for a successful application.
Limitation Period
In Tasmania, Queensland and New South Wales, you must show that you have possessed or occupied that land for at least 12 years.
South Australia and Victoria require 15 years of use of the land being claimed. If during this limitation period the possession is interrupted or discontinued, you could lose your right to claim possession and trigger restart of the limitation period.
Actual Possession
The possession or use of the land must be open and peaceful but unauthorised. This means the possession must not be in secret or by force, and without the rightful owner’s consent. Possession is not ‘adverse’ if the rightful owner has consented to it i.e. by agreement.
Intention to Possess
You must have intended to possess the land exclusively. A strong indication of your intent can be shown if you have been paying council rates for the land possessed for your exclusive use.
Collecting the required evidence
Among other documentation, you must declare that you have satisfied the above requirements through a Statutory Declaration. You may be required to find a ‘disinterest’ witness to declare that they have observed your possess the land throughout the limitation period. In some circumstances, a statutory declaration from a solicitor may also be required.
Common issues
Commonly, adverse possession applicants may not have been in possession of the land for the full limitation period. Some may struggle to find disinterested witnesses who have observed their possession of the land for the same period. However, this does not automatically mean that your application for an adverse possession claim will be unsuccessful.
Contact W Legal Group!
W Legal Group can help you prepare for your adverse possession claim, even if you cannot show possession for the full limitation period. If you have a question about making a claim or uncertain whether you have a claim, contact us on (03) 9590 6180 or email hello@wlegalgroup.com.au.
