Adverse Possession
About the role
Tisher Liner FC Law specializes in adverse possession matters, having acted for the successful party in Victoria's leading case in this area. Our Adverse Possession Lawyers provide expert assistance to help you either defend or make a potential claim for adverse possession. We have extensive experience in adverse possession and road discontinuance matters, including making and defending applications to the Court and to Land Use Victoria.
We have acted for numerous landowners and claimants, including landmark cases such as Abbatangelo v Whittlesea City Council, Laming v Jennings, and Hyams & Wallena Pty Ltd v Blythe [2024].
Examples of Adverse Possession
- A fence not aligned with the title boundary;
- A building or structure placed over another person’s title boundary;
- The blocking off of an old road or lane; or
- The deliberate enclosure or use of another person’s land without that owner’s permission.
Services
- Section 60 of the Transfer of Land Act: Adverse possession applications to Land Use Victoria;
- Section 99 of the Transfer of Land Act: Amendment to title boundary area or position applications;
- Section 103 of the Transfer of Land Act: Amendments to correct land description in the Register;
- Section 26p of the Transfer of Land Act: Applications for deletion of warnings relating to title amendments;
- NICO (Not in Common Ownership) plan of subdivisions;
- Applications by Owners Corporation for adverse possession claims;
- Applications by developers for adverse possession and removal of road and carriageway encumbrances;
- Making and defending claims in the County Court of Victoria and Supreme Court of Victoria;
- Making and defending claims in the Magistrates’ Court of Victoria under the Fences Act.
Key Preliminary Questions
- How long ago did you purchase or take possession of the property?
- Do you have a survey of your land from when it was purchased?
- Do the boundaries on your land match up with the boundaries set out on your title?
- Are you aware of anyone making an adverse possession claim against you?
You should act quickly when an adverse possession claim is made against you or when circumstances arise that may impact a potential claim. Delaying action could severely affect your legal position.
Requirements for a Claim
There are three main requirements for an adverse possession claim:
- Actual Possession – You must prove actual possession that is open, peaceful, and not secret or by force. It must not be with the consent of the owner.
- Intention – There must be an intention to possess. Fencing the land often suggests this intention.
- Time Limitation – In Victoria, you must be in possession of the land for a minimum of fifteen (15) years. If you recently purchased the property, you may still make a claim by obtaining Deeds of Assignment of Possessory Rights from previous owners covering the 15-year period.
Claims Against Council Land
Claims for adverse possession can no longer be made for land owned by the Crown, the Public Transport Corporation, Victorian Rail Track, water authorities, and, since January 2005, council-owned Torrens land. However, land registered under an original subdivider’s name (rather than the council) may still be claimable.
Defending a Claim
To defend against an adverse possession claim, you may argue that the land has not been occupied for more than 15 years or that there has been an acknowledgment of title by the claimant. Legal advice and thorough research are critical to successfully defending or making a claim.
For further guidance, read our articles on defending adverse possession claims in the Law Institute Journal.
Resources
- Frequently Asked Questions on Adverse Possession
- Councils and Road Discontinuances
- Recent Changes to the Fences Act
- Guide on Acquiring Land by Adverse Possession
- "What’s Yours is Mine: A Guide to Adverse Possession" (Law Institute Journal)
- "Get off my land: A Guide to Defend an Adverse Possession Claim" (Law Institute Journal)
For advice and assistance, contact Principal Phillip Leaman.