What is adverse possession?
Adverse possession is a principle of law under which a person who has possessed land belonging to another person for a sufficiently long period may acquire ownership of that land.
The period in Victoria is 15 years.
However, simply using someone else’s land for 15 years does not necessarily amount to adverse possession. The nature of the possession, how the land has been used and the intention of the person occupying it are all important.
Although most adverse possession claims involve neighbouring or adjoining land enclosed by fencing, a claim can also succeed in relation to land that does not adjoin the claimant’s own property, provided the necessary possession is established.
For example, there was a successful claim by a tenant of a property in an expensive Melbourne suburb. The owner, who lived in the United Kingdom, stopped communicating with the tenant. The tenant remained in possession of the property for more than 15 years without any further contact from the owner and ultimately succeeded in obtaining title by adverse possession.
What has to be established?
In general terms, adverse possession requires two important elements:
1. Actual possession of the land
The person claiming the land must have exercised sufficient physical control over it.
The possession must ordinarily be exclusive. In other words, the claimant must have possessed the land in a manner which excludes the registered owner and other persons from possessing it.
2. An intention to possess the land
The claimant must also have intended to possess the land as his or her own, whether or not the claimant believed that he or she was legally entitled to it.
The particular acts which demonstrate possession and intention will vary considerably from one property to another.
A common example — the misplaced fence
Many adverse possession claims arise because a fence has been constructed somewhere other than on the title boundary.
For example, a fence between two suburban properties may have been erected 30 centimetres inside the title boundary of one property. The neighbouring owner may have occupied the strip between the fence and the true title boundary as part of the neighbour’s backyard for many years.
The strip may have been landscaped, maintained, paved or incorporated into the garden. The registered owner may never have entered it or exercised any control over it.
If that situation has continued for the necessary period, there may be a claim to ownership of the strip by adverse possession.
The position will depend upon the evidence. The mere fact that a fence has been in a particular location for 15 years does not, by itself, establish adverse possession.
Why 15 years?
Under Victorian limitation legislation, a registered owner generally has 15 years in which to recover land after the right to recover it has arisen.
Importantly, time does not begin to run merely because the registered owner is not using the land. The land must actually be in adverse possession.
If adverse possession continues for the necessary period without the registered owner recovering possession, the registered owner’s title to the land may be extinguished.
The person in possession may then be able to take steps to have his or her ownership formally recognised and registered.
Does the claimant have to know that the land belongs to somebody else?
No.
Adverse possession commonly arises precisely because neither owner realised that a fence or other physical boundary was in the wrong position.
For example, a purchaser may buy a house believing that everything within the existing fences forms part of the property. A later survey undertaken many years afterwards may reveal that part of the backyard is actually contained in the neighbour’s title.
The important question is usually not whether the occupier knew where the title boundary was, but how the land was possessed and for how long.
What if the registered owner gave permission?
Possession with the registered owner’s permission will generally not be adverse possession.
For example, if an owner permits a neighbour to use part of the owner’s land for access or gardening, that use is fundamentally different from the neighbour occupying the land to the exclusion of the owner.
Whether permission was given — expressly or by implication — can therefore become an important issue.
What sort of evidence is important?
Because adverse possession develops over a long period, historical evidence is often critical.
Relevant evidence may include:
existing and previous fences;
surveys and plans;
photographs;
aerial photographs;
buildings, garages, walls, paving and landscaping;
evidence from former owners;
evidence from long-standing neighbours;
contracts and property records; and
evidence showing how the disputed land has actually been used over the years.
A claim may therefore depend as much upon reconstructing the history of the property as upon examining its present condition.
Adverse possession is not simply a boundary dispute
A survey establishes the relationship between the physical occupation of the land and the title boundary.
It does not necessarily determine who owns a disputed strip of land.
Where a fence differs from the surveyed title boundary, it may be necessary to consider whether possessory rights have arisen before assuming that the fence should simply be moved to the title boundary.
Every case depends upon its facts
Small differences in the history of possession can produce very different legal consequences.
A gate in an old fence, occasional access by a neighbour, an agreement between former owners, a change in the position of a fence or evidence that the land was used by both properties may all be significant.
For that reason, adverse possession claims should be considered by reference to the particular history and evidence relating to the land concerned.
Gauld & Co., Solicitors advises in relation to adverse possession claims, disputed boundaries and the evidence necessary to establish or resist a claim.
