Insights Library
Adverse Possession in Victoria: A comprehensive guide and how Best Hooper Lawyers can assist
Fences are often treated as the true legal boundary between properties. But fences can be misleading and if one has been built in the wrong location and is left unchallenged for years, it may give rise to a legal claim known as Adverse Possession.
Adverse Possession is a legal principle that allows a person to claim ownership of land they have occupied for an extended period without the permission of the legal owner. Occasionally described colloquially as ‘squatter’s rights’, Adverse Possession reflects the law’s recognition of long-term, uncontested occupation. In Victoria, the process is governed by the Transfer of Land Act 1958 (Vic) and the Limitation of Actions Act 1958 (Vic).
For landowners and occupiers alike, Adverse Possession claims can have significant consequences. Whether you are seeking to secure title over land you’ve used for years or are facing a claim against your property, Best Hooper Lawyers offers expert guidance to protect your interests.
What is Adverse Possession?
Adverse Possession allows a person to apply for legal title to land if they have possessed it openly, continuously, and without consent for a statutory period of at least 15 years. This doctrine promotes certainty in land ownership and prevents dormant claims from disrupting long-settled land uses.
However, not all land is susceptible to Adverse Possession. Under Victorian law, Crown land, Council-owned land, and land owned by public authorities such as Melbourne Water or VicTrack cannot be claimed. Claims typically arise between private landholders, often involving boundary discrepancies, encroachments, or overlooked parcels of land.
Elements of an Adverse Possession claim
To successfully establish an Adverse Possession claim, the Applicant must demonstrate the following key elements:
- Exclusive possession: The Applicant must exercise control over the land to the exclusion of others, including the owner on title.
- Actual possession: The Applicant must demonstrate they have physical control of the land or are occupying or using the land in a manner consistent with ownership.
- Intention to possess: The Applicant must demonstrate an intention to possess the land as their own, by exercising control over it, excluding others and dealing with it as an owner would. This may involve fencing the area, building structures, maintaining gardens, or otherwise using the land as one’s own.
- Open and notorious possession: The possession must be visible and obvious to anyone, including the owner on title, who should have been aware of the occupation had they exercised reasonable diligence.
- Possession without consent: The occupation must occur without the permission or licence of the legal owner.
- Continuous possession for 15 years: The Applicant must show that these conditions have been met continuously for at least 15 years, with no significant breaks or interruptions in possession. If an Applicant is unable to demonstrate 15 years of possession in their own right, they may do so with the assistance of a former owner of their property, provided that the former owner’s possession of the land is consistent with these conditions.
The Adverse Possession process in Victoria
The formal process for claiming land through Adverse Possession involves several critical steps:
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Preliminary assessment
The first step is determining whether the land is eligible for an Adverse Possession claim. This includes verifying that the land is not excluded (i.e. Crown land) and assessing whether the factual circumstances meet the legal criteria for Possession.
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Evidence gathering
Successful claims rely on thorough evidence, including:
- Photographs showing occupation and improvements;
- Statutory declarations from the Applicant, former owners and, in some cases, disinterested witnesses, attesting to the duration and nature of possession; and
- Maintenance records, such as council rates (if applicable), utility bills, and correspondence indicating control over the land.
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Survey and title due diligence
A licensed surveyor will prepare a plan showing the land being claimed and its boundaries.
A title and plan search for the land being claimed will identify the registered proprietor and reveal if there are any mortgages, covenants, or easements affecting the land. Land may be claimed ‘subject to existing encumbrances’, meaning that any encumbrances will remain on the land, or ‘free from encumbrances’. For some encumbrances, such as easements or roads, the Applicant is required to demonstrate a 30-year period of non-use to claim this land free of those encumbrances.
It may also be necessary to consider the legal position of land that may have acquired a road status, under statute or common law.
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Application to Land Use Victoria
An Application is then lodged with Land Use Victoria under section 60 of the Transfer of Land Act 1958 (Vic). This application must include:
- the survey plan, abstract of field records and surveyor’s report prepared by a licensed surveyor;
- statutory declarations from the Applicant and the Applicant’s legal practitioner;
- supporting evidence of possession, which may include statutory declarations from former owners of the Applicant’s property and a Deed of Assignment of Possessory Rights; and
- details of the current registered owner and the current ratepayer for the land.
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Notification and objections
If Land Use Victoria accepts the Application, that is the elements of Adverse Possession are made out to its satisfaction, the Applicant must display a notice on the land for a period of 30 days. Land Use Victoria will also notify the registered owner, any mortgagees, and other parties with an interest in the land by letter.
If any of these parties have a legal right to object to the claim, they have the opportunity to lodge a caveat during the Applicant’s notice period which will halt the application for a period of 30 days. If a caveat is lodged, the objecting party must then commence Court proceedings within a further 30-day window to substantiate their objection. If this does occur, the Application will remain unregistered and on hold, until a resolution is reached, being either a decision of the Court or a settlement between the parties.
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Decision and registration
If no objections are lodged, or if any disputes are resolved in favour of the Applicant, Land Use Victoria will register the Application and the Applicant will become the new registered proprietor of the land on title.
Challenges and defences to Adverse Possession
For landowners, receiving notice of an Adverse Possession claim can be alarming. However, there are valid grounds to oppose such claims, including:
- The Applicant’s failure to establish continuous possession for 15 years;
- Evidence that the possession was permissive or occasional; or
- Demonstrating that the land was accessed or controlled by the rightful owner during the claimed period.
Best Hooper Lawyers assists both Applicants and Respondents in navigating these disputes, ensuring that their rights and interests are vigorously defended.
How Best Hooper Lawyers can assist
At Best Hooper Lawyers, we understand that Adverse Possession claims involve complex factual and legal considerations. Whether you are seeking to claim land or protect your title, our team provides expert advice and representation throughout the process.
Our services include:
- Initial legal advice – We assess the merits of your case, provide clear advice on the prospects of success, and outline the necessary steps and potential risks involved.
- Evidence preparation – Our team assists in compiling and presenting compelling evidence to support your claim or defence, including statutory declarations, photographic records, and historical documentation.
- Liaison with surveyors and experts – We coordinate with professional licensed surveyors to ensure that plans accurately delineate the land in question, which is a critical element in establishing the boundaries of possession.
- Preparation and lodgement of Applications – We prepare and lodge all necessary documentation with Land Use Victoria, ensuring compliance with statutory requirements and procedural accuracy.
- Negotiation and dispute resolution – Where objections arise, we engage in negotiations and, if required, we represent clients in mediation or proceedings in the Magistrates Court or the Supreme Court to resolve disputes efficiently and effectively.
- Title registration and compliance – Following a successful claim, we manage the process of title registration and ensure compliance with all legal obligations, providing a seamless transition of ownership. We can also assist with consolidating the claimed land with your existing property, which we strongly recommend if the property is being occupied as your principal place of residence.
Why choose Best Hooper Lawyers?
With decades of experience in Victorian property law, Best Hooper Lawyers offers unrivalled expertise in Adverse Possession matters. Our team acts exclusively for private clients, avoiding conflicts of interest with acquiring authorities or public bodies. We combine technical legal knowledge with practical, strategic advice to achieve the best possible outcomes for our clients.
Whether your matter involves a straightforward boundary adjustment or a contested claim over valuable land, Best Hooper Lawyers is here to guide you through every stage with clarity and confidence.
Contact us
If you believe you may have a claim for Adverse Possession or have received notice of such a claim against your property, contact Best Hooper Lawyers today. Our dedicated team is ready to assist you in securing or defending your property rights.
