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Adverse possession - Acquiring Property Rights through Occupation


What is adverse possession?

Adverse possession is a legal concept that allows the acquisition/ownership of another person’s real property by occupation and use continuously for a specific period of time.


In Victoria to assert an adverse possession claim, you must meet certain criteria, these include:

  • Occupying or having possession of the land continuously for a minimum of 15 years;

  • Maintaining the land during this period; and

  • Putting up and maintaining barriers like fences, gates and/or controlling access.

The evidence you need to assert an adverse possession claim, include:

  • Statutory declarations from multiple parties;

  • Aerial photographs;

  • Survey plans prepared by a surveyor; and

  • Land Register searches of the properties adjacent to the possessed land.

If you have received a notice of adverse possession claim against your land, you should:

  • Contact us immediately as you only have 30 days from the date when Land Victoria notifies you to lodge a caveat; and

  • Get informed legal advice before approaching the applicant or responding to any notices.

Other options include:

  • An agreement that benefits all parties, which may include stipulations about construction or development and redefining a new boundary between the title boundary and fence placement.

  • Boundary modifications through a NICO (Not-in-Common-Ownership) Plan of Subdivision or a Boundary Realignment Application.

Why engage a lawyer?

Given the increasing value and scarcity of land, safeguarding your property rights is crucial. Even a small strip of land, just 30cm wide, can influence whether planning permits for development or renovation are approved by the council.

This area of law is intricate and can be perplexing.


Contact us if you:

  • Believe you have a potential adverse possession claim;

  • Would like information on how to purchase or lease the land you occupy; or

  • Discover that a neighbour’s structures or fences are encroaching on your property

We can assist by:

  • Conducting preliminary searches;

  • Providing advice in relation to your options;

  • Drafting documents and compiling evidence;

  • Lodgment; and

  • Processing applications.

Note:

Adverse possession claims cannot be made for Crown land or land owned by a council, water authority or VicTrack. Typically, these types of land can be acquired from the council or leased from the owner.




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