As adverse possession claims can be complicated it is critical to obtain advice from a lawyer experienced in these matters as the loss of value of your property can be significant
Whilst adverse possession applications are procedural in nature, these applications involve gathering evidentiary material to prove your claim. It can be costly if you get it wrong. It can be costly if you fail to defend a claim where you have rights.
What is adverse possession?
Adverse possession allows a person to claim title to land that is not owned by them, in circumstances where they have had exclusive and continuous possession of the land in Victoria for a period of at least 15 years without the consent of the registered proprietor of the property.
Our property lawyers can provide expert advice on whether you are likely to have a successful claim for adverse possession, make application on your behalf or defend an application made in respect of your land. Alternatively, there may be other types of applications relevant to your matter.
What do I need to prove for adverse possession?
There are three key elements to prove for adverse possession. They are:
Time Limitation: You must be in possession of the land for a minimum of 15 years.
Actual Possession: There must be actual possession that is open and peaceful and not secret or by force and must not be with the consent of the registered owner.
Intention: There must be an intention to possess the land.
Adverse possession claims most commonly arise in circumstances where a fence or the structure of a building is not aligned with the title boundary, but can also occur in many other instances such as where an old laneway or road is no longer used.
Considering the complex nature of the claim, it is always advisable to involve a legal expert to prepare or defend an adverse possession claim.
How can I claim adverse possession?
In Victoria you can claim adverse possession by submitting an application to the Registrar through Land Use Victoria. This application must be accompanied by the relevant documentation as outlined in the Transfer of Land Act 1958, Section 60.
Our Experience resolving cases of adverse possession
- Application for a vesting order by possession pursuant to section 60 Transfer of Land Act 1958 (adverse possession claim)
- Application to correct error in Title pursuant to section 103 Transfer of Land Act 1958
- Application by proprietor to amend Title pursuant to section 99 Transfer of Land Act 1958
- Removal of carriageway and road encumbrances
- Plans of subdivision
- Owners corporation claims
- County Court and Supreme Court claims – Transfer of Land Act 1958
- Magistrates Court claims – Fences Act 1968
- Advice on Fences Act 1968
- Boundary disputes
Kristy Muhlhan, our Principal and head of Property and Property Development Team has successfully acted in many adverse possession claims. Our special counsel Kate Smith and senior associate, Sandra Le are also experienced and available to assist.
To find out how our property lawyers can help you with your adverse possession issue contact us today on +61 3 9822 8588 or email HERE.
