What is yours is mine - What are the applicable legal principles relating to adverse possession and boundary disputes
What is Adverse Possession?
Adverse possession is a legal principle that enables the occupier of a piece of land to obtain ownership, if uninterrupted and exclusive possession of the land for at least 15 years can be proven. It occurs when a person acquires title to land by dispossessing the true owner.
Almost everyone has heard the phrase ‘possession is nine tenths of the law’. If you possess land, an application can be made to the Registrar of Titles at the Land Titles Office to allow you to gain title to this land.
Whether you believe you have a claim against someone’s land, or someone is claiming against your land, it is important that you act to formalise your claim (or prevent a claim from crystalising) as there are several ways in which an Adverse Possession claim may be defeated.
What are the requirements?
There are three main requirements which are as follows:
(1) Time Limitation
- In order to adversely possess another party’s land, possession of the land must be for a minimum of 15 years.
- Section 8 of the Limitation of Actions Act 1958 (LAA 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 LAA Act provides that at the end of that period, the person’s title to the land shall be extinguished. Therefore, 30 years after a person goes into adverse possession of land, they are no longer entitled to make a claim for legal ownership of the land.
(2) Actual Possession
- An applicant will need to prove actual possession which must be open and peaceful and not secret or by force. It must not be with the consent of the owner. It means a visible and effectual dominion or control by a person who intends to act as an owner. The rightful owner’s knowledge of the adverse possession is irrelevant.
- An adverse possessor who abandons possession prior to the expiry of the limitation period loses his entitlement to make a claim for adverse possession. However, if adverse possession is abandoned after the expiry of the limitation period, the true owner’s title has been extinguished. Possession must be uninterrupted and exclusive.
(3) Intention
The adverse possessor must show they had the intention to possess the land.
- Mere personal convenience will not constitute intention;
- Fencing of land and payment of rates suggests intention to possess.
- Such an intention can also be indicated by building on the land, leasing it to others, planting trees or crops or running livestock on the land.
- If the objective intention of the possessor is clear, there is no need for inquiry into the possessor’s subjective purpose. If the objective acts of the possessor are unclear or ambiguous, the subjective purpose may become a crucial determinant.
- Possession cannot be pursuant to a licence, lease or other grant from the true owner. A claimant’s willingness to accept a licence or lease from the true owner is inconsistent with the intention to possess the land.
If an adverse possessor mistakenly believes they have a lease from someone other than the legal owner, this may be sufficient.
What acts amount to adverse possession?
There are a range of acts which may evidence possession either singularly or cumulatively. These acts include (but are not limited to) the following:
(1) Enclosure / Fencing
- Enclosure is cogent evidence of adverse possession and of dispossession of the true owner. Enclosure is the strongest possible evidence of adverse possession.
- It is noted that “enclosure of an area of land by fencing is clearly a method by which a person can demonstrate that he or she intends to dispossess and has taken possession of the land.”
- However, it should also be noted that even when a section of land is enclosed, there may still be insufficient use made of it to show exclusive possession.
(2) Occupation by residence / building on the property
- This would usually involve constructing a house on the property or moving into an existing property.
(3) Leasing the property to other parties;
(4) Use of the property by planting trees, crops or running livestock
- This may include allowing agistment of cattle, maintenance of trees, plants and garden and the employment of a person to maintain, cut or mow lawns.
(5) The payment of rates and taxes;
The absence of one or more of these items does not necessarily prove lack of possession. Each case is to be judged according to its circumstances and the nature and characteristics of the land are to be taken into account.
What documents are required to submit a claim
(1) Statutory Declaration attesting to occupation of the land.
- The postal address of the land claimed;
- The value of the land being claimed (with an attached valuation);
- The name and address of the municipality where the land is located;
- The circumstances in which possession commenced.
- Description of the use of the land;
- State who occupied or used it and whether their occupation or use was exclusive, continuous and without interruption;
- Show that the land was completely enclosed by itself or with other land;
- Identify the means of access to the land;
- Improvements to the land and their related circumstances;
- Advise who pays/paid the rates;
- State that no acknowledgement of ownership in respect of the claimed land (or any part thereof) has been given;
- Identify the land claimed by reference to the plan of survey or aerial photograph as an exhibit;
- If the period of possession is less than 30 years and the registered owner is a natural person, the statutory declaration should:
(a) state that the applicant has no knowledge of any circumstances on the part of the owner which might have extended the limitation period for doing so beyond 15 years; and
(b) give details of any dispute with the registered owner or any other party that is claiming an interest in the land.
(2) Disinterested Witness Statutory Declarations
- A disinterested witness is a person that can provide a statutory declaration in respect to the land claimed, but who does not have an interest in the property.
- The disinterested witness declarations should state the witnesses means of knowledge that fences which surround and mark the boundaries of the land as shown on the plan of survey, have continuously stood in their present position for the past fifteen years and upwards.
- The disinterested statutory declaration should:
(a) Identify the land claimed by reference to the plan of survey as an exhibit
(b) Note how the witness has known the land for at least 15 years
(c) Explain how the witness acquired the knowledge;
(d) Deal with those parts of the evidence pertaining to occupation, use, enclosure, access and improvements required of the applicant.
(3) Statutory Declarations from previous owner / Assignment of possessory rights
- If the applicant has not been in possession of the land for the full 15 year period, but when combined with previous owners can show that he satisfies the limitation period, an adverse possession claim can proceed. Periods of possession may be aggregated as long as there is no gap in possession (or time begins again). The Deed of Assignment of Possessory Rights will need to be stamped at the State Revenue Office.
(4) Rating evidence
- Letter from the Council regarding the payment of rates. The letter should identify the land claimed and give particulars of the person who, during the last 15 years has been recorded in the municipal records as the rated owner.
(5) Plan of survey, abstract of field records and original surveyors report or aerial photograph.
- A survey plan or aerial photographs will usually be required. The survey should be attached to each Statutory Declaration and Deed of Assignment of Possessory Rights.
- A survey is not required when the land which is being claimed is wholly enclosed:
(a) by land to which the applicant has title;
(b) by Government roads or Crown land;
(c) a combination of the above.
(6) Evidence by applicant’s solicitor
- If the period of possession is less than 30 years, and the true owner is a natural person, a statutory declaration by the applicant’s solicitor is required that in summary provides that he:
(a) has made thorough enquiries;
(b) is satisfied that the applicant has been in adverse possession of the land for at least the last 15 years;
(c) has no knowledge of any circumstances on the part of the registered proprietor which might have extended the period of limitation beyond 15 years; and
(d) has given details of any dispute with the registered owner.
(7) Torrens Land
- Section 62 of the Transfer of Land Act 1958 provides that the Registrar may make an order vesting land in an applicant. The Registrar will usually be satisfied if the documentation covers the issues set out above, however, requisitions can be given by the Registrar which may involve further statutory declarations being prepared by the applicant.
(8) General Law Land
- General Law Land claims are made under Section 15 of the Transfer of Land Act 1958 (depending on whether there is a survey). The application must be supported by:
(a) a survey plan, with an abstract of field records certified by a licensed surveyor (if required);
(b) search of title;
(c) Legal Practitioner’s Certificate; and
(d) Evidence of Possession. This would usually be in the form of Statutory Declarations from the person in possession of the land and Deeds of Assignment of Possession where other parties have been in possession.
Exemptions & Qualifications to Adverse Possession claims
(1) Crown Land
- No adverse possession claim can be brought against the Crown.
- Section 7 of the Limitation of Actions Act 1958 essentially provides that the right title or interest of the Crown to or in any land shall not be in any way affected by reason of any possession of such land adverse to the Crown, whether such possession has exceeded sixty years or not.
(2) Rail Track
- No adverse possession claim can be brought against PTC or Victorian Rail Track.
- Section 7A of the Limitations of Actions Act 1958 provides that land prescribed by the Rail Corporation Act 1996 shall not be affected by any adverse possession claims irrespective of the period of adverse possession.
(3) Water Authorities
- No adverse possession claim can be brought against water authorities.
- Section 7AB provides that adverse possession of any length does not affect water authorities.
(4) Council Land
- No adverse possession claim can be brought against a Council.
- Section 7B of the Limitation of Actions Act 1958 exempts council land from claims of adverse possession. This refers to Torrens Land.
(5) Common Property
- No adverse possession claim can be brought against common property under an Owners Corporation.
- Section 7C of the Limitations of Actions Act 1958 provides that common property under an Owners Corporation is not affected by any adverse possession irrespective of the length of time.
Disputing an Adverse Possession Claim
The true owner may stop time running by:
(1) ejecting the possessor and re-entering the land;
(2) rejecting the possessor’s acts of possession, i.e. by the removal or erection of a fence;
(3) instituting proceedings to recover the land.
However, you must be careful not to breach the new Fences Act 1983 (amended on 1 October 2014).
What to do if a claim is made against your land
If a claim is made against your land, you should receive notice from Land Victoria advising of the adverse possession claim. Advice should be sought from a solicitor before any action is taken. If the claim does not have merit or the claim is arguable, it may be appropriate to file a caveat with Land Victoria which:
(1) forbids the granting of an application for vesting order, pursuant to section 61(1) of the Transfer of Land Act 1958 (for Torrens Land); or
(2) forbids the creation of the folio pursuant to section 26R of the Transfer of Land Act 1958) (for General Law Land).
You have 30 days from the date that Land Victoria gives you notice to lodge a caveat. Once lodged, the caveat will remain valid for 30 days. Prior to the 30 day period lapsing, advice should be sought about whether proceedings should be issued A copy of the proceedings should be served on Land Victoria.
After the 30 day period, if proceedings are not issued, the Registrar is free to process the adverse possession claim.
What we can do to assist
The Land Titles Office usually requires a Plan of Survey to be prepared and supporting Statutory Declarations from disinterested persons to be provided to support your claim. If you believe that you have a valid adverse possession claim, we can assist you by assessing the claim and preparing the necessary documentation to support the claim.
