The Basics of Adverse Possession

An “adverse possession” claim is a claim brought in circumstances where the adverse possessor has used another persons land and excluded all other potential users from that piece of land for a period of more than 15 years.

The Limitation of Actions Act 1958 frames an adverse possession claim in the negative, stating that after the expiration of 15 years from the date on which the right of action accrued no action can be brought by any person attempting to recover their land.

Section 18 of the Limitations Act provides that after this period the original owner’s title to the land is extinguished. Effectively what this means is that if you can prove that you have controlled another person’s land for 15 years, then the original owner of the land is excluded from bringing a claim to recover the land or to have you removed from the land.

It should be noted that claims for adverse possession cannot be brought in respect of land owned by the crown, the public transport corporation, rail and water authorities, and since January 2005 council owned land.

Common examples of adverse possession claims might include:

  • fencing off or using another person’s land without that person’s knowledge or permission.
  • a structure being erected on another person’s land or over a boundary
  • a purported boundary fence not located on the title boundary
  • restricting public access to a disused road, right of way or easement

The leading case in adverse possession is Abbatangelo v Whittlesea City Council.  The case established nine principals necessary to establish that an adverse possession has taken place.

  1. Proof is required that the registered proprietor of the land is not in possession of the land and that the person in possession of the land has a prima facie right to hold such land.
  2. The adverse possessor must show that they not only possess the land for 15 years but that they intended to possess the land by using appropriate mechanisms (eg a fence) to exclude other people and to use the land for their own benefit.
  3. The adverse possessor must provide evidence that they have used the land in a manner consistent with the way a registered proprietor might have been expected to use the land and that no one else has had a similar use of the land.
  4. The circumstances of the case must show that it is clear the holder of the land intended to possess it to the exclusion of all other parties.
  5. It is not required that there has been a conscious intention to exclude the registered proprietor but rather there must be a conscious intention to exercise exclusive control of the land.
  6. If the registered proprietor consents to the use of the land then no possession adverse to the rights of the owner can be said to have taken place.
  7. Whether or not the registered proprietor realises that adverse possession has taken place is irrelevant to the claim.
  8. (Depending on the circumstances) acts of possession with respects to only part of the land may constitute an act of possession with respect to all of the land claimed.
  9. A mere use of the land for a special benefit (eg picnics on the weekend) will not be enough to constitute possession but will demonstrate the required intention to possess.

These are the basic principles of any adverse possession claim.  If you feel that you may have such a claim feel free to contact our office to discuss the matter further with one of our solicitors.

   Is this your backyard?  You may have a claim…

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