This page deals with the most common form of adverse possession application — an application to the Registrar of Titles under section 60 of the Transfer of Land Act 1958.
These applications must comply with the published requirements/guidelines of Land Registry Services (the Titles Office). The documents required will depend upon the particular history of possession.
It is important that the preliminary investigations are undertaken in the correct order. For example, if a survey (for adverse possession purposes) is obtained at the outset (and paid for), it may later become apparent that essential supporting documentation—sometimes from prior possessors—cannot be obtained, with the result that the proposed application cannot proceed.
Establishing the 15 years’ possession
The first step is to establish that there is sufficient evidence of at least 15 years’ possession.
If the applicant has personally possessed the claimed land for 15 years or more, the evidentiary requirements are relatively straightforward.
Sometimes the applicant needs to rely upon possession by one or more previous owners. In that situation, it is important at an early stage to establish whether the necessary evidence can be obtained from those prior possessors.
Each required prior possessor will generally need to provide the prescribed statutory declaration and a deed assigning his/her/their possessory rights to the next owner.
If the necessary evidence from previous possessors cannot be obtained, a conventional Titles Office application may not be possible.
Survey and supporting documents
Once the possessory history has been established, a licensed surveyor will need to be engaged to survey and precisely identify the land being claimed. A more standard “title re-establishment” survey may already have been prepared by a surveyor, but a survey for adverse possession purposes will also need to be prepared for the application.
The survey must be no more than two years old at the date of lodgment.
The application is then supported by the prescribed, pro forma, statutory declarations, the survey material and any deeds of assignment or other evidence required by the particular circumstances of the claim.
Land Registry Services applies its published guidelines closely. Applications which do not contain the necessary evidence may be requisitioned or, where fundamentally deficient, rejected.
Lodgment through SPEAR
Applications are prepared and lodged electronically through the electronic platform SPEAR (Surveying and Planning through Electronic Applications and Referrals).
SPEAR brings together the applicant’s solicitor, the licensed surveyor and Land Registry Services in the one electronic application.
The survey and supporting material are uploaded, the section 60 application is created, and the completed application is submitted electronically for examination.
An examiner may issue requisitions to the solicitor or surveyor if further information, evidence or amendments are required. Those requisitions must be satisfactorily answered before the application can proceed.
Notice of the claim
Once the application documentation is complete/approved, notice of the adverse possession claim must be given.
A notice is displayed conspicuously on the property, or at another place directed by the Registrar, and must remain displayed for at least 30 days.
This gives an interested person an opportunity to object by lodging a caveat under section 61 of the Transfer of Land Act.
Objections are very uncommon. If an objection is maintained, court proceedings may ultimately be required to determine the competing claims. See further information about objections in the “Defending claims” page of this website.
Completion of the application
Once the Registrar is satisfied that the and notice has been displayed for 30 days, the vesting order will be made.
The Register is then amended so that the applicant becomes the registered proprietor of the land which has been successfully claimed.
How long does the process take?
It is difficult to give a precise timeframe.
The time required depends upon matters such as locating previous owners, obtaining declarations and deeds of assignment, completing the survey, the current examination workload and whether requisitions are issued.
As a broad guide, about six months from commencement to completion is a reasonable allowance for an uncomplicated application, although some applications are completed more quickly and others take longer.
Gauld & Co., Solicitors manages the application process in conjunction with the licensed surveyor, from the initial investigation of the possessory history through to completion of the Titles Office application.
