There are several ways in which a claim for adverse possession may be made in Victoria.
The appropriate procedure depends upon the circumstances of the particular case, the nature of the land being claimed and, importantly, the evidence that is available to establish the required period of possession.
There are three principal avenues.
1. Applications to the Titles Office under section 60
By far the most common method of making an adverse possession claim is an application to the Registrar of Titles under section 60 of the Transfer of Land Act 1958.
This is an administrative application made through the Titles Office, now part of Land Use Victoria. The applicant asks the Registrar to make an order vesting the claimed land in the applicant on the basis that title has been acquired by adverse possession.
The Titles Office has detailed requirements governing these applications. It publishes guidelines, a checklist, prescribed forms and evidence requirements which must be satisfied before an application will be accepted and ultimately approved. Amongst other things a survey prepared for adverse possession purposes must form part of the supporting documentation.
The evidence ordinarily needs to establish both:
- the land which is being claimed; and
- the history of possession for the required period.
The application must also be supported by statutory declarations and other evidence dealing with the history and nature of the possession.
Where the present owner has not personally possessed the claimed land for the whole of the required 15 year period, it will be necessary to rely upon possession by previous owner/s and to provide the documentation required by the Titles Office in relation to those earlier periods of possession.
The Titles Office application process is intended to provide an administrative means of obtaining registered title without the need to commence court proceedings.
However, the applicant must be able to satisfy the particular evidentiary and procedural requirements imposed by the Titles Office. An application which does not meet those requirements may be requisitioned, rejected or may need to be withdrawn.
Because this is the most common form of adverse possession claim, we deal separately with the requirements and stages involved on our Application process page.
2. Adverse possession claims in the Magistrates’ Court
A second form of adverse possession claim can arise in the Magistrates’ Court under the Fences Act 1968.
This jurisdiction applies where there is already a relevant fencing dispute between adjoining owners.
Section 30E of the Fences Act permits a person, in the circumstances specified by that section, to claim title by possession to part of the adjoining land where that land is also the land upon which the disputed fencing works or associated works are to be carried out.
The Magistrates’ Court can then determine who is entitled to title by possession of the relevant part of the land.
For example, two neighbours may disagree about the position in which a replacement boundary fence should be constructed. A survey may show that the existing fence does not follow the title boundary.
One owner may contend that the land between the existing fence and the title boundary has been acquired by adverse possession.
Where the requirements of the Fences Act are satisfied, the adverse possession issue can be determined as part of the Magistrates’ Court fencing proceeding rather than requiring a separate proceeding in another court.
A determination by the Magistrates’ Court that a party is entitled to title by possession can then be used in support of the steps necessary to have that ownership recorded on the title.
The Magistrates’ Court jurisdiction is therefore particularly useful where the questions of where the dividing fence should be located and who owns the disputed strip of land are directly connected.
If a favourable order is made for adverse possession in the Magistrates’ Court, note that a Section 60 application still has to be made to the Registrar of Titles. However that application would be much more straightforward as the Registrar of Titles will accept the formal finding of the Magistrates’ Court in relation to the adverse possession.
3. Adverse possession claims brought directly in a court
The third avenue is much less common.
In an appropriate case, proceedings may be brought directly in a court seeking a declaration or other orders recognising that title to land has been acquired by adverse possession. Such proceedings may be brought in the County Court or, depending upon the circumstances, the Supreme Court.
This procedure may become appropriate where a claimant has a genuine adverse possession case but cannot satisfy all of the particular documentary or evidentiary requirements imposed for an administrative application to the Titles Office.
The difficulty may arise because the possession commenced many years ago and some of the evidence ordinarily required by the Titles Office is no longer available.
For example, a former owner whose period of possession is important may have died or cannot be located. Documents which would ordinarily be expected in a Titles Office application may no longer exist, or declarations by prior possessors may not be obtainable. There may nevertheless be other persuasive evidence capable of establishing what occurred over the relevant period.
Court proceedings provide a different means of proving the claim. Evidence can be given by witnesses and tested in court, documents and historical material can be considered, and the court can make findings about the history and nature of the possession.
The underlying legal requirements for adverse possession remain the same. The difference is that the court is able to determine the claim judicially on the evidence placed before it rather than the claimant being confined to satisfying the particular administrative requirements of the Titles Office.
Proceedings of this kind are generally considerably more expensive than a section 60 application and are therefore used much less frequently.
Nevertheless, there are cases in which the value or importance of obtaining title to the disputed land justifies the additional cost involved, particularly where the available evidence may be sufficient to establish adverse possession in court even though a conventional Titles Office application cannot readily be made.
Which type of claim is appropriate?
In most cases, the starting point will be to determine whether a conventional section 60 application to the Titles Office can be made.
If there is already a qualifying fencing dispute before the Magistrates’ Court, the Fences Act procedure may provide another avenue.
Where neither procedure is suitable, it may be necessary to consider whether the evidence warrants bringing proceedings directly in a higher court.
Gauld & Co., Solicitors can advise upon the appropriate procedure having regard to the history of possession, the available evidence and the particular land involved.
