Adverse Possession

Adverse possession has been defined as ‘possession of land contrary to the interests of the rightful owner’.

Adverse possession can arise when you have been using land which you do not own for an extended period of time. This can occur in a number of ways including when fences have been erected in the wrong position. Under such a situation you may be able to claim adverse possession under current laws in Victoria and become the registered proprietor of the land.

There are three key requirements to demonstrate adverse possession, which are:

• That you have actual possession without the consent of the registered owner. However this must be peaceful and open possession and not by force or in secret.

• That possession has been for at least fifteen years.

• That there is an intention to possess.

If the possession meets these requirements then you could lodge an adverse possession application to Land Victoria. As part of the application you are required to show that you do indeed have adverse possession of the land and you will be required to provide evidence, including appropriate statutory declarations from yourself and other disinterested witnesses to support your application.

The County Court and Supreme Court also have the power to deal with adverse possession claims. Additionally since 2014 the Magistrates’ Court can determine adverse possession but only in the limited circumstance where a complaint arises under the Fences Act.

A claim of adverse possession can be defeated if it can be demonstrated that there has been an interruption to the possession of the land.

Author: Meg Gilbert