What is adverse possession?

Adverse possession (or squatter’s rights) is a principle that allows a person to claim ownership over another person’s property without paying for it, if they have been occupying it without permission.  If the person claiming adverse possession is successful, then the owner’s right in the property is extinguished and the adverse possessor becomes the owner of the property.

What are the requirements for adverse possession?

There are three requirements for establishing adverse possession. These are:

1. Possession must have endured for 15 years. As noted in the section 8 of the Limitation of Actions Act 1958 (Vic), a person claiming adverse possession must be able to prove that the land has been adversely possessed for a continuous period of 15 years.

It is important to note that where the area claimed includes an easement, reserve or road, evidence of 30 years of non-use will need to be provided if the title to the property is to issue to the possessor free from the encumbrance.

2. Factual Possession. The possession must be open, not secret, peaceful and not by force, adverse and without consent of the title owner. This means that if the owner of the land consents to the possessor being there, or the possessor forcefully remains against the will of the owner, this will not be adverse possession.  

3. Intention to Possess. The adverse possessor must have the requisite intention to possess the land. Accordingly, the possessor must occupy the land to the exclusion of all other people. For example, fencing the property, grazing cattle and undertaking maintenance.

The Victorian Supreme Court in Whittlesea City Council v Abbatangelo [2009] VSCA 188 noted that even though the adverse possessor was not physically present on the land for the entire 15 years, they regularly visited and used the land throughout this period. Therefore, the Court noted that the intention to be proven for adverse possession is not an intention to own, but an intention to possess.

‍What land cannot be adversely possessed?

Land owned by the Commonwealth or State Governments, the Public Transport Corporation, Victorian Rail Track, water authorities and local councils cannot be adversely possessed. Therefore, it is important to investigate whether the claimed land is Crown land, before an application is submitted.

What happens if there is a ‘gap’ in the 15 years?

The Victorian Supreme Court in Roy v Lagona [2010] VSC 250 noted that there must be an intention to leave the land and that temporary absence will not constitute abandonment. For example, if Emily occupied the land for 10 years and then decided to leave and Sophie later became the adverse possessor for five years, Sophie cannot add Emily’s 10 years to meet the required 15 years. This is because the right to adverse possession has been ‘abandoned’ by Emily and Sophie will need to possess the land for another 10 years.

What happens if there are multiple possessors over the 15 years?

Where the final adverse possessor claims through a series of previous adverse possessors, each of their separate periods (being for less than the statutory requirement of 15 years), can be added together to extinguish the true owner’s title to the land. This is usually through conveyance or devise of property in a person’s will. Each previous adverse possessor must have met the requirements for adverse possession and it must be proven that at no point did abandonment occur.  

I am the owner of land being adversely possessed – how can I stop this?

As one of the key requirements of adverse possession is occupying the property ‘without consent’, the owner of the land can re-enter the property at any time for any period of time prior to the 15 years and this will ‘stop the clock’ on the possessor’s time. If the possessor has occupied the land uninterrupted for 15 years prior to the owners’ re-entry, they will have rights to prove adverse possession.

Any proceedings brought with respect to the adverse possession will also stop the 15-year time limit. Accordingly, if you are notified of an adverse possession claim with respect to your property and such claim is arguable or has no merit, a caveat should be filed within 21 days with Land Victoria.

I have adversely possessed land for 15 years or more, how do I make a claim for adverse possession?

Pursuant to sections 15, 26P and 60 of the Transfer of Land Act 1958 (Vic), there are certain requirements that must be addressed when completing a typical adverse possession application.

A statutory declaration will be required from the applicant and, if necessary, the applicant may be required to provide evidence of their occupation of the property for at least the last 15 years. Each statutory declaration will need to:

1. explain the circumstances as to when possession commenced;
2. establish that the possession was exclusive, continuous and without abandonment;
3. describe the activities undertaken on the land, such as who it was occupied by, how it was used and whether such use was continuous, uninterrupted and exclusive;
4. indicate how exclusive possession was demonstrated (such as if the land was unfenced or fenced), and how the land was adequately maintained to exclude other persons; and
5. provide details of how the land was accessed, if any improvements were undertaken and the value of the land being claimed.

A statutory declaration must also be submitted from a disinterested witness (such as a neighbour who has known the land for 15 years or more) and from the applicant’s lawyer.  

If you would like further information in relation to adverse possession, please contact our property team on (03) 9560 2922.

How Sharrock Pitman Legal can assist?

If you would like further information in relation to an adverse possession claim, or assistance regarding a property matter, please do not hesitate to get in contact with us on 1300 205 506. As Accredited Specialists in Property Law, we are well equipped to provide expert legal advice regarding your unique circumstances.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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