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.
To be able to make a claim to establish adverse possession, the following three requirements must be complied with:
- Possession for at least 15 years: According to section 8 of the Limitation of Actions Act 1958 (Vic), the applicant must be able to prove that the lad has been adversely possessed for continuous 15 years. Even if you have just purchased a 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 entire period.
- Actual possession: The possession must be open, peaceful, and not secret or by force. It must not be with the consent of the owner.
- Intention of possession: The applicant must have the intention to possess the land which is related to occupy the land to the exclusion of other people. For example, fencing the property and undertaking maintenance.
Claim
It is recommended that an Australian legal practitioner prepares and lodges the claim as it is a complex process. To lodge the claim, the above-mentioned requirements must be complied and supporting material such as:
- Statutory declaration of the Applicant.
- Statutory declaration of an Australian legal practitioner.
- Describe the activities undertaken on the land, indicate how exclusive the possession was and provide details of how the land was accessed and requested forms.
- 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 a valuation of the land being claimed (not necessarily a sworn valuation).
- Obtain declarations other witnesses (including a disinterested witness) as to factual background of the possession over the required period (if applicable).
- Prepare a formal Application; and
- Display the intention of the LTO to make the (vesting) order.
However, there are exceptions of land that cannot be adversely possessed such as land owned by Public Transport Authority, water authorities, local councils, and Commonwealth or State Government. Common property is also excluded from adverse possession claims.
If you wish to proceed with an adverse possession claim, please contact our office to arrange an appointment. Our experienced solicitors can provide the necessary assistance and guide you through the process.
