What is adverse possession? The registered proprietor of land will lose the right to reclaim possession of their title land after it has been exclusively and continuously possessed for a period of 15 years.
Section 8 of the Limitation of Actions Act 1958 (Victoria) provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right accrued. Pursuant to section 18 of that Act the registered proprietor’s title will be extinguished at the expiration of the 15 year period.
Prior to the expiration of the 15 year period, the registered proprietor can sue the possessor to recover possession of the land. After the 15 year period has expired, any actions to retake possession constitute an act of trespass against the adverse possessor.
The principles of adverse possession are clearly articulated in Whittlesea City Council v Abbatangelo [2009] VSCA 188. Essentially, an adverse possessor must show that he/she has both factual possession and the requisite intention to possess.
- Factual possession depends upon the circumstances in each case, including the nature, position, and characteristics of the land and the available uses of the land. The possessor must show an appropriate degree of physical control and possession must be exclusive. The possessor must basically have dealt with the land as an occupying owner would have been expected to, and prove that no one else has dealt with the land in that way during the relevant period.
- Intention to possess involves the intention to exclude the world at large including the paper title holder so far as is reasonably practical in the relevant circumstances and permitted by law. The intention need not be a conscious intent to exclude the registered proprietor, but must be an intention to exercise exclusive control over the land. It is sufficient for the adverse possessor to believe he is the title owner of the land. The intention need not be an intention to acquire ownership, but simply needs to be an intention to possess the land.
Often enclosure of the land is by itself a sufficient indication of an intention to possess and evidence of factual possession.
Periods of possession of prior possessors can be relied upon and aggregated to make up the requisite 15 year period. Depending upon the circumstances, assignments of possessory rights from prior possessors may be required.
After the expiration of the 15 year period, the adverse possessor does not need to do anymore, but he or she can apply to the Registrar of Titles for an order vesting the land in the possessor to become the registered proprietor of the land.
There are a number of applications that can be made to the Registrar of Titles to obtain title to land based on possession. The best approach to adopt, and the appropriate application will depend on the circumstances in each case, including the results of survey investigations and title searches. These include applications pursuant to the following sections of the Transfer of Land Act:
- Section 60 – Adverse Possession Application.
- Section 99 – Application to amend title boundaries to reflect bona fide occupation.
- Section 15 – General Law Conversion Application of Possessory Title (land not brought under the Transfer of Land Act).
- Section 103(2) – Application for Title Boundary Amendment (where the land possessed is excess or hiatus land not actually included in any title).
- Section 26P – Application to Delete a Warning as to Title Dimensions (usually resulting from a non-survey based general law conversion).
It may be that the best approach is in fact a NICO Subdivision (Not in Common Ownership).
Application can also be made to the Courts for a declaration that title has been acquired.
Fleur Craig has had over 15 years’ experience in adverse possession and related matters. To discuss your adverse possession matter please contact Fleur Craig of Armour-Craig Legal on (03) 5636 4986.