Section 103 Applications, Excess Land and Cautions

Section 103 Applications, Excess Land and Cautions

In our earlier article on excess (hiatus) land, we explored how historic surveying practices can result in land that is physically occupied but not reflected on a registered title. These issues often come to light only when a modern survey is undertaken – typically in the context of development, sale, refinancing or subdivision.

This article builds on that discussion by addressing:

• how to lodge a Section 103 application under the Transfer of Land Act 1958 (Vic);
• when Section 103 is (and is not) the appropriate mechanism; and
• the disputes that commonly arise, particularly where third-party rights are engaged.

What Is a Section 103 Application?

Section 103 of the Transfer of Land Act 1958 (Vic) empowers the Registrar of Titles to correct errors or omissions in the Register. In practice, Section 103 is used to address clerical, descriptive or technical errors in a title, including errors affecting boundaries, dimensions or areas.

Importantly, Section 103 is not a mechanism to determine competing ownership claims. It is intended to correct mistakes — not to resolve disputes about who owns land.

In the context of excess land, Section 103 may be appropriate where the evidence demonstrates that the register does not accurately reflect the land that was always intended to be included in the title.

Lodging a Section 103 Application – Practical Steps

Although administrative in nature, a Section 103 application requires careful preparation.

1. Survey Evidence

A licensed surveyor must prepare a plan clearly identifying:

• the registered title position;
• the discrepancy or error; and
• the proposed correction.

Historic plans, occupation evidence and survey reconciliation are often critical.

1. Supporting Material

Typical lodgement material includes:

• the survey plan;
• statutory declarations (where required);
• title particulars; and
• compliance with the relevant Land Use Victoria practice requirements.

Applications lacking adequate evidentiary support are commonly delayed or refused.

1. Lodgement and Assessment

Applications are lodged with Land Use Victoria, which assesses whether the correction falls within the scope of Section 103 or whether an alternative process is required.

Section 103 vs Section 99 – A Common Point of Tension

A frequent issue is whether a matter should proceed under:

• Section 103 (correction of an error), or
• Section 99 (amendment of boundaries to reflect occupation).

The distinction is critical. If the application would effectively change the legal boundary to match occupation, particularly where that occupation has been contested or long-standing, Section 99 or an adverse possession pathway may be required.

Disputes may arise where neighbouring owners or the Registrar of Titles disagree on which mechanism is appropriate. Legal advice is therefore critical to avoid potential lengthy disputes.

Common Disputes Arising from Excess Land Corrections

Even well-prepared applications can give rise to disputes, including:

• Fence and boundary disagreements revealed by modern surveys;
• Adverse possession claims by adjoining owners asserting long-term exclusive occupation;
• Objections to the proposed correction, particularly where land area or value is affected; and
• Caveats lodged to protect competing interests, delaying registration.

These issues frequently escalate beyond administrative processes and require legal resolution.

Third-Party Rights: The Critical Risk Issue

Third-party rights, such as a neighbour, may become a critical question and this is often where applications encounter difficulty. 

The Torrens system prioritises certainty of title. The Registrar of Titles must be satisfied that any correction does not improperly prejudice third parties, including registered and unregistered interest holders.

It is not often that the Registrar of Titles will investigate any rights or other submissions asserted by a third party. It is therefore important to understand how to navigate the system if a third party seeks to assert rights. 

1. Mortgagees

Mortgagees are commonly affected third parties. Changes to land area or configuration can impact:

• security value;
• valuation assumptions; and
• enforcement rights.
• Mortgagee consent is frequently required where the correction is more than purely clerical.
• It is often that a mortgagee consent will be required and product of title (if in security). One should also consider how an application may impact the terms of a loan secured by the mortgage. 

2. Adjoining Owners

Adjoining landowners may assert:

• existing or prospective adverse possession claims;
• reliance on historic fencing or occupation; or
• equitable or informal boundary arrangements.

3. Caveats and Equitable Claims

Third parties may lodge caveats to protect asserted rights. While a caveat does not automatically defeat a Section 103 application, it can force the matter into negotiation or litigation.

Difficulty may arise where a neighbour, for example, disputes the application however falls short of having a caveatable interest. 

4. Section 103 Is Not a Tool to Defeat Rights

Crucially, Section 103 cannot be used to extinguish substantive property rights. Where the correction would effectively determine competing ownership claims, the Registrar of Titles will generally require those claims to be resolved separately.

Best Practice for Landowners

To minimise risk and delay:

• identify all registered and potential third-party interests early;
• obtain survey and Best Hooper’s legal advice before lodgement;
• engage with neighbours and mortgagees where appropriate; and
• select the correct statutory pathway from the outset.

Early structuring and strategy often avoids costly disputes later.

Best Hooper Lawyers’ experience

Best Hooper Lawyers’ Property Team advises on hiatus land across Victoria, with a particular focus on matters where the title outcome intersects with development delivery and subdivision outcomes. 

Our work in this area includes:

• acquisition and project due diligence where occupation and title boundaries do not align;
• strategic advice on prospects, exclusions, evidence requirements and sequencing;
• coordination with licensed surveyors to define the claimed land and support registrable outcomes;
• preparation of additional supporting evidence (where required), including where occupation history spans prior owners, and the supporting documentation needs to be structured coherently;
• management of Land Use Victoria applications and procedural requirements under the Transfer of Land Act 1958 (Vic); 
• assessing correct application types; and
• disputes in litigation regarding excess land and third party rights. 

General information only

This page is general information only and is not legal advice. It is not intended to be relied on as a substitute for obtaining advice specific to your circumstances, project or transaction. Laws, policies and regulator practices can change, and the application of the law depends on the particular facts.