Adverse Possession
Transfer of Land Act 1958 (Vic)
Adverse possession is an ancient legal concept that can be traced back to Roman Law.
In its modern form, the effect is that a registered owner can permanently lose ownership of their land, by reason of some other person having been in occupation of the land (continuously, intentionally, factually and without permission) for in excess of 15 years. The applicant bears the onus of proving that this has occurred.
Not all land is capable of being adversely possessed. Exceptions exist in relation to land owned by the Crown, water authorities, VicTrack and Councils. In addition, members of an Owners’ Corporation cannot adversely possess common property.
Claims for adverse possession can be made through the Titles Office (section 60 Transfer of Land Act) or through the Courts.
For owners that intend to construct to a boundary, if there is a difference between the fence line and the boundary shown on title, an adverse possession application will need to be made before a building permit can issue over any section of land which remains legally owned by someone else.
Due to the complexity of this area of law, legal advice should always be sought before making an adverse possession application.
Francke Lawyers are experienced advisers and able to assist you. Contact us to find out how we can help.