What's yours is mine - Adverse Possession

Written by Omruye Koyu

What is Adverse Possession?

Adverse possession is the process whereby title to another person’s real property is acquired without compensation by holding the property in a manner that conflicts with the true owner’s rights for a specified period of time.

If the adverse possessor acquires title, the rights of the true owner are extinguished. Adverse possession will, as a general rule, extinguish the title of the true owner to everything above and below the surface.

Adverse possession claims can be quite complex and cannot be made against, including but not limited to, the following:

· The Crown;

· Victorian Rail Track;

· Council-owned land;

· Water authorities; and

· Common property

What are the requirements?

There are three main requirements for an adverse possession claim which are as follows:

1. Time Limitation –

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.

2. Intention –

The onus of proof of possession lies with the party seeking to possess the land. Generally, the fencing of the land often suggests the intention to possess.

3. Actual possession –

The party seeking to possess the land 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.

Even if you have just recently purchased your property, it is possible that you may be able to make an adverse possession claim, however, you will need to obtain Deed of Assignments of Possessory Rights from all previous owners which make up the 15 years of possession. In addition, you will need evidence which can satisfy the tests for adverse possession for the whole of the 15 year period. Not many have adverse possession of 15 years in their own right. At Ferraro & Company, we can assist in working through the issues and assess whether a claim is possible.

What are the costs associated with land being adversely possessed?

There are no costs of becoming the owner of the land by the mere act of possession, which means, legally, that the title of the true owner is extinguished. You do not have to pay the true owner anything. However, you will have to pay legal costs, licenced land surveyor costs and out-of-pocket expenses associated with the application to the Land Titles Office (“LTO”).

How to make a claim

The application has to be made to the LTO. These applications are quite complicated and time consuming. Generally, it is necessary to undertake the following:

· Obtain a survey from a licenced land surveyor;

· Obtain a letter from the local council and other authorities stating if it has any assets in the land being claimed;

· Obtain declarations from the applicant and other witnesses (including a disinterested witness) as to factual background of the possession over the required period;

· Obtain a valuation of the land being claimed (not necessarily a sworn valuation);

· Prepare a formal Application; and

· Display the intention of the LTO to make the (vesting) order.

Should you require any assistance on adverse possession matters, please do not hesitate to contact our office and make an appointment with one of our solicitors who will be able to assist and guide you with the entire process.