Adverse Possession

CLAIMING TITLE BY ADVERSE POSSESSION

See also Easement by Possession, Claiming of

Background

The requirements of adverse possession can be found in Part IXB of the Land Titles Act 1980 and allow a person to claim land they have been occupying for a long period of time, but don’t own, by applying to the Recorder of Titles for a vesting order to have the title registered in their name.

Occupation requirements

The occupation of the land must have been “as of right”, meaning open, peaceful and without the land owner’s permission.

An application cannot be made if the occupation has been secretive, by force, or by agreement with the land owner.

The occupation must have been continuous and to the extent that the land owner knew, or ought to have known of the adverse occupation.

There are other ownership and occupation requirements in the legislation that need to be addressed by an occupier when making application to claim land.

Periods of occupation

In broad terms, the Limitation Act 1974 provides that a title owner who is dispossessed from his or her land cannot recover that land after the expiration of 12 or 30 years.

An occupier must prove a period of 12 years’ continuous occupation against a title owner capable of defending his or her own land.

An occupier must prove a period of 30 years continuous occupation if the title owner is the Crown, is deceased or is under disability guardianship.

The payment of rates

An occupier cannot claim title to another persons land whilst the title holder has been paying rates on his or her land, therefore any period of time during which the Council rates have been paid by, or on behalf of, the title holder is to be disregarded.

This provision does not apply if the Council certifies in writing that it is unclear who has paid, or who is paying, the rates on the land under claim.

Supporting evidence

Adverse possession involves both the mental and physical control of another persons land, such that on a daily basis people would consider the occupier, by his or her actions on the land, to be the land owner.

At least one other independent person must produce evidence, usually in the form of a statutory declaration, to confirm the land has been occupied by an applicant over the period being claimed.

Plan of survey

An application for title based on long possession is to be supported by a plan of survey prepared by a registered land surveyor, unless the Recorder directs otherwise.Avoidance of sub-minimum lots

If the Recorder is unsure whether the granting of an application would result in the continuation or creation of a sub-minimum lot, the Recorder may require an applicant to produce a certificate from the local Council.

The certificate must confirm that the block is not sub-minimum, or if it is, that the Council consents to the application. This action ensures that the granting of an application will not be in contravention of a Council planning scheme.

Public notice

Before making an application the applicant must arrange with the Recorder to-

·        

Give notice in a locally published newspaper

·        

Give notice to any person with an interest in the title

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Give notice to any person with an unregistered interest lodged with the Recorder

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Post a notice on the land.

Caveat forbidding granting of an application

Any person with an estate or interest in the land being claimed by an occupier may lodge a caveat with the Recorder forbidding the granting of the application, should such an application affect their interest in the land under claim.