As a general rule, possession of land is a common indication of ownership. To use land that you do not own and without that owner’s authorization amounts to what is known as trespass.

However there are certain instances in which a person, known as an adverse possessor, who occupies the land of another, can claim that land as their own and prevent the true owner from doing so.

That is an adverse possessor may officially apply to the Registrar of Titles for the formal transfer of that piece of land into their own name. Such an application is known as an adverse possession application.

A typical example may be a fence that has been incorrectly positioned between two properties. In this example the properties on either side of the fence may have been sold numerous times before the error is discovered by one of the owners.

In order to lodge an adverse possession application you must at the very least be able to demonstrate a minimum of 15 years uninterrupted and exclusive possession of the land being claimed.

Essentially the adverse possessor must act as if they are the true owner of the land rather than simply occupying the land. This can also extend to the adverse possessor exercising ownership rights such as renting out the piece of land or allowing other third parties to use that land.

Notwithstanding this, it is impossible to adversely possess either Crown or council owned land.

Lodging and substantiating an adverse possession claim is an involved and complex matter. The Registrar of Titles prior to approving a claim must legally satisfy themselves as to evidence produced in support of that claim.

As part of that process and in order to actually determine if you are adversely possessing property, you must undertake and complete what is known as a ‘check survey’.

  • Such a survey is completed by a surveyor and if necessary that surveyor should be prepared to provide evidence to the Court.
  • The check survey will disclose the correct title boundary, as determined by the original plan of subdivision as compared to the current title boundaries as they currently sit on the ground. This will enable a comparison to be made and determine exactly what is being adversely possessed and claimed.

The Titles Office does permit a margin of error and they will ignore what they consider to be a ‘trifling encroachment’.

In the event that the check survey discloses a claim, you or your lawyer must then complete the application providing other ancillary evidence. Once completed the application is lodged with the Registrar of Titles who will then make a determination as to the claim.

Subject to that determination there are rights of appeal to the Supreme Court.

As always this article contains general information only and should not be relied on for detailed advice related to your particular circumstances. Should you require such advice, please contact your lawyer.

Freya Southwell is the lead property lawyer at Sutton Laurence King Lawyers. Freya can be contacted on 03 9070 9810 or frs@slklawyers.com.au.