Adverse Possession Claims

Adverse possession claims in residential areas tend to fall into 2 categories. The first, is where the fence line is misaligned with the title boundary. The second is where your property has enclosed an old laneway, disused road or even upon old creek lines.

Generally the first involves claiming the land against your neighbour. The second can often be against the local council or the person who originally subdivided the area and is now dead. Note you cannot make an adverse possession claim against the Crown or Crown land and in most cases you now cannot claim against Councils because of legislative changes.

Adverse Possession laws enables the occupier of a piece of land to obtain ownership of it if they can prove uninterrupted and exclusive possession of the land for at least 15 years (the statutory period for Victoria). It is akin to “squatting” on your neighbour’s land or tacking is another term used.

The land that may be affected may be a sliver or be quite substantial. The justification for claiming the land may be monetary or may be very important vis a vis a subdivision or re-development of the property or you simply want the fence lines to match and coincide with the title boundaries.

Another growing body of claims is the Council won’t give you a building permit to build over land you occupy but because you don’t own or have title to a strip of land, you are put in the position you must claim the land.

The claim may make the difference between getting a planning permit for 3 townhouses rather than 2. One of the last successful applications we made on behalf of a client involved an “old road” which was 15 feet by 50 feet or 750 sq ft. At $300 per square foot this land was worth $225,000. Land in other areas like Brighton and Hawthorn is now worth over $500 per square foot.

Another client wanted to put a swimming pool in the back yard on land that did not belong to them. The City of Glen Eira council would not grant a permit until the client could prove ownership of the land. The land was a significant area and abutted the old creek. Nearly twelve months later, they have successfully claimed the land. Most of the delays can be attributed, not to any complexity of the claim, but to the Land Titles Office Victoria being understaffed.

Caveat Emptor (Building Issues)

1. Do not build on land you do not own, even if the land in question is within your fence line. Councils take a very dim view of this scenario.
2. If you are building to your title boundary but over the fence line, proceed very cautiously as your neighbour may have acquired adverse possession rights to some of your land. You may then be subject to injunction court proceedings

Seek legal advice in both scenarios