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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 4 townhouses rather than 3. 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 $150 per square foot this land was worth $112,500. Land in other areas like Brighton 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.

What is required in making an adverse possession claim?

  • Plan Survey
  • Proof of continuous possession of the land for over 15 years by you and the previous owners.
  • Arial photographs can be helpful and affidavits of the owner(s) and neighbours are required.
  • Advertising and contribution levy.
  • Land Registry Application in the prescribed form under Section 60 Transfer of Land Act (Victoria)

What is the Cost?

A survey will cost $3000+, legal fees are approximately the same plus application fees, advertising and the contribution levy. All up the cost would be $7500, subject to provision of actual cost estimates.

If successful, the Land Title’s Office will issue you with a new Certificate of Title for the land claimed

We are often asked the question: “a developer has bought the block next door and wants to remove or replace the dividing fence and move the fence to the correct survey line”.The developer is entitled to do this, unless you are prepared to defend the fence line. You must be prepared to make an adverse possession claim and prove your claim. You need to call in a surveyor to at least correctly record where the current fence line is and you need to take photographs to record the status quo. We are Melbourne based lawyers and can act on your behalf; put the developer (owner next door) on notice; perhaps lodge a caveat; and prepare the application on your behalf.

Court action is a last resort option but this cannot be discounted. Court costs would significantly add to the cost of any claim or defence.

Making an adverse possession claim is not the only option. For example, you could enter into an agreement with the neighbour to leave the fence where it is. In any case, it is recommended the agreement is made in writing.

If you have an Adverse Possession Claim? – fill out this form, enquiries welcome

Give a brief outline of the situation, and we will respond shortly with our thoughts and discuss with you what options you might have. At this stage, the answers will be preliminary and no fees apply.