Adverse Possession

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This is an old doctrine that says, basically, that where a trespasser remains in possession of land for a period of time (usually 15 years and 1 day) then that person may have acquired ownership of the land.

The doctrine prevents someone who has used land for a long period of time, believing it to his/her land, from being ejected by someone who discovers a technical defect relating to the original boundaries.

A typical example is where a fence is incorrectly placed inside the proper boundary of a property. The properties on either side of the boundary may have been sold numerous times before someone discovers the mistake. The owner of the land that has "lost" because of the mistake, cannot now force the owner of the land that has "gained" to move the fence back to the original boundary.

Surveyor required

Making a claim on the basis of adverse possession is no simple matter, and the services of a qualified surveyor will be required.

The role of the surveyor is to perform what is known as a “check survey”, to determine the proper boundaries of the property according to the original plan of subdivision or survey plan.

The surveyor’s drawings will usually show the boundaries according to the plan, together with the fencelines as they appear “on the ground”, so that a comparison can be made.

It is important to use a qualified surveyor who is prepared to give evidence in court if necessary.

Choosing a surveyor

When choosing the surveyor you should consider using a surveyor who is familiar with the local area. It is often the case that the surveyor will be familiar with the property, particularly if previous owners or neighbours have consulted the same surveyor in the past.

In Victoria, surveyors must be licensed by the Surveyors Registration Board of Victoria. (To visit the website of the Surveyors Registration Board of Victoria, just click on the following link: Surveyors Registration Board of Victoria.)

The website of the Surveyors Registration Board of Victoria includes an Onlne Register of Licensed Surveyors, so that consumers can readily find a properly qualified and licensed surveyor.

Cost of a survey

It can be very difficult to determine the cost of a survey, as land will vary in size, shape and other characteristics.

The best way to find out what a survey will cost is to contact a number of different surveyors, explain the nature of the problem and the type of survey required, and obtain a quotation.

Remember, that the cheapest quote is not always the best. Full surveying qualifications, membership of a professional surveyors association, and good local knowledge are all important considerations when choosing a surveyor.

If the survey confirms an adverse possession issue

If you have had a survey conducted and you believe that there is an adverse possession issue, contact us for initial legal advice. Making an adverse possession claim is not a straight-forward matter, and the process of making and substantiating a claim can be quite complicated.

The following material is provided by the Land Titles Office as a guide to the requirements for registration of land procured by way of adverse possession:

ADVERSE POSSESSION APPLICATIONS

INTRODUCTION

Under Section 62 of the Transfer of Land Act 1958, the Registrar may grant an application and make an order vesting land under the operation of the Act an applicant who makes application under Section 60, if satisfied that the applicant has acquired title by possession.

The following outlines in general terms the requirements and matters that must be proved to the Registrar’s satisfaction before an application for title based on adverse possession will be granted under Section 60 and is intended to be read as a guide. It is not intended to provide a complete code for all applications.

In summary it must be proved that:

  • The applicant is as at the date of the application [and at the date of the making of the vesting order] in exclusive possession.
  • The applicant, either alone or together with other persons through whom the applicant claims, has been in exclusive possession continuously for a least fifteen years.

If application is made for the grant of an unencumbered title, the applicant must also prove that any encumbrances existing over the interest of the dispossessed registered proprietor have been determined or extinguished by the applicant’s possession.

Where the encumbrance is an easement (eg. rights of carriageway, drainage etc.), proof of non-user for at least thirty years is required to constitute sufficient evidence of abandonment to allow its removal.

The term “possession” means a visible and effectual dominion or control by a person who intends to act as owner and who holds himself or herself out as owner. This can be shown by an applicant who occupies or uses the land with the intention of acting as owner. The applicant may also demonstrate possession by exercising ownership rights in other ways, such as receiving rents and profits from tenants or licensees or by allowing others to occupy or use the land. “Possession” does not mean and should be distinguished from “occupation”.

METHOD OF PROVING ADVERSE POSSESSION

Because of the many ways in which an applicant may prove adverse possession, it is difficult to cover every possible set of circumstances in which the Registrar might be prepared to make a vesting order. In each case, it is up to the applicant and his or her legal advisers how best to present the applicant’s case.

If the evidence provided by the applicant does not convince the Registrar that title by adverse possession has arisen, a vesting order will not be made, even though the applicant may have satisfied the formal requirements for the application.

If, conversely, a practitioner believes that his or her client has acquired title by adverse possession, the practitioner should not be deterred from making out a case for consideration by the Registrar despite the fact that the evidence may not completely satisfy the formal requirements. For example, where the application pertains to land that has been covered for at least fifteen years by structures, the Registrar may be satisfied with lesser proofs than those usually required.

Despite evidence that would otherwise be insufficient, the Registrar may be prepared to make a vesting order upon payment of a larger contribution to the Consolidated Fund if the circumstances of the applicant’s adverse possession demonstrate a clear and incontrovertible intention by the applicant (and those through whom he or she claims) to occupy or use land claimed in the applicant’s own right and a public and ongoing display of that intention for at least fifteen years.

Initially, an interview with an officer in Land Registry to discuss the nature of the applicant’s case may be of benefit in these circumstances.

Set out under “PROOFS” (see following pages) are the matters that Land Registry requires for a typical adverse possession application. It is hoped that these will provide practitioners with a guide that can be used when preparing proofs for a client claiming title to land by adverse possession.

IDENTIFICATION OF THE LAND

In almost all applications, a survey plan or aerial photograph will be required. The only exceptions usually made are in cases where –

Land applied for is wholly enclosed:

  • by land to which the applicant has title, or
  • by government roads, or
  • by Crown lands, or
  • a combination of any or all of the above

Application is made:

  • by a mortgagee in possession; or
  • by a mortgagor seeking to remove an outstanding mortgage that is statute barred; or
  • by one or more co-proprietors against the other co-proprietors).

For information regarding the use of aerial photographs, see Guidance Notes on this subject issued by the Registrar.

Where a survey plan is used it should reflect current circumstances. If the plan is more than two years old or there is other evidence available to the Registrar indicating that occupation has changed since the date of the last survey, the surveyor may be required to update observations and re-certify the survey.

CONSOLIDATED FUND CONTRIBUTION

Where the applicant can provide satisfactory proof of 30 years adverse possession the Registrar will grant an application subject to payment of a contribution. This is usually about 0.5 percent of the value claimed but may be waived entirely where the Registrar is of the opinion that granting the application would not impose any risk to the Consolidated Fund.

The Registrar may grant an application upon satisfactory proof of 15 years adverse possession, but will then levy an increased contribution. This is usually about one percent of the value of the land claimed where the registered proprietor is a natural person. This increased contribution recognises the slight risk to the Fund of a claim that might be made by a proprietor under a disability whose rights are saved by virtue of the Limitation of Actions Act 1958.

Where the land applied for stands in the name of an incorporated body and satisfactory proof of 15 years adverse possession can be provided, a contribution of about 0.5 percent of the value of the land claimed will be required but may be waived entirely where the Registrar is of the opinion that granting the application would not impose any risk to the Consolidated Fund.

Where the applicant can provide satisfactory proof of adverse possession for a period between 15 and 30 years and the land stands in the name of a natural person, the Registrar will grant an application subject to payment of an increased contribution to the Fund based on an assessment of the risk involved. This would ordinarily be a contribution of between 0.5 percent and one percent of the value of the land claimed where the registered proprietor is a natural person.

In any case, a larger contribution may be required of an applicant where the Registrar perceives an additional risk in making a vesting order.

In all cases where the Registrar perceives some risk to the Consolidated Fund, a minimum contribution of $50.00 to the Consolidated Fund will be required of the applicant.

GENERAL LAW LAND
Where the land sought to be claimed by adverse possession is General Law land (ie. land not under the operation of the Transfer of Land Act 1958), application must be made under Section 15 of the Act.

The application must be supported by:

  • A survey plan or aerial photograph (see IDENTIFICATION OF THE LAND)
  • Search of Title [Section 26J of the Transfer of Land Act 1958] (see SECTION 3 Transfer of Land Act 1958)
  • Legal Practitioner’s Certificate [Schedule 5A of the Transfer of Land Act 1958] (see SECTION 3 Transfer of Land Act 1958)
  • Evidence of Possession (see PROOFS).

LIMITATIONS ON EXAMINATION

Whatever method is chosen by a practitioner to prove his or her client’s adverse possession, Land Registry will not process applications that:

  • do not disclose a case for a vesting order to be made; and
  • are not accompanied by documentation sufficient to support a case.

Failure to disclose a prima facie case or to provide the documentation necessary will result in the application being refused at lodgement or rejected and fees being forfeited pursuant to the provisions of Section 105 of the Transfer of Land Act 1958

To prevent applications being refused at lodgement, practitioners seeking to have the Registrar consider their client’s application on the basis of lesser proofs than would usually be the case should ensure that they support the application by a letter detailing the basis of the applicant’s claim.

PROOFS

Proofs and items ordinarily required by the Registrar in the case of –

A. WHOLE PARCELS (OR SUBSTANTIAL PART/S)

1. Evidence of Applicant and Prior Possessors

Statutory declaration/s by the applicant and (if necessary to provide evidence for at least the last 15 years) by each prior adverse possessor for their respective periods of possession to:

  • explain the circumstances in which possession commenced;
  • establish that such possession was exclusive and continued subsequently without interruption;
  • describe the use made of the land and state who occupied or used it and whether their occupation or use was continuous, uninterrupted and exclusive;
  • either show that the land was completely enclosed (either by itself or together with other land), by fences, walls or buildings which remained on the same lines as shown on the survey plan or aerial photograph used to identify the land and which were adequately maintained to exclude people other than those in occupation OR where the land is unfenced or only partly enclosed, indicate how exclusive possession was demonstrated and maintained;
  • indicate the means of access to the land;
  • describe any improvements on the land and the circumstances in which these improvements were made;
  • indicate who paid the rates; and
  • state no acknowledgment of ownership in respect of the claimed land or any part thereof has been given.

The applicant’s declaration must:

  • state the value of the land being claimed and the basis upon which this value is calculated;
  • give the postal address of the land claimed, or the property of which it forms part; and
  • give the name and address of the municipality of the district in which the land is located.

Where the period of possession relied upon is less than 30 years and the registered owner is a natural person, the applicant’s statutory declaration must also:

  • state that the applicant has no knowledge of any circumstances or disability on the part of the registered proprietor or any other person previously entitled to bring any action for recovery of the land which might have extended the limitation period for doing so beyond 15 years;
  • give details of any dispute by, or contact with, the registered owner or any other person claiming an interest in the land.

The declaration/s must identify the land claimed by reference to the plan of survey or aerial photograph as an exhibit (see IDENTIFICATION OF THE LAND).

2. Evidence of Disinterested Witness(es)

A statutory declaration by one disinterested witness which:

  • identifies the land claimed by reference to the plan of survey or aerial photograph as an exhibit (see IDENTIFICATION OF THE LAND);
  • establishes that he or she has known the land (or the property of which it forms part) for at least 15 years and explains how the witness has acquired that knowledge (eg. by describing his or her opportunities of observing it during that time);
  • covers, at a minimum, those parts of the evidence pertaining to occupation, use, enclosure, access and improvements required of the applicant in the applicant’s statutory declaration above.

Where an assignment or a chain of assignments of possessory rights (see ASSIGNMENT OF POSSESSORY RIGHTS) is available but the applicant cannot provide statutory declarations from all previous possessors, practitioners may overcome this difficulty by providing evidence from an additional disinterested witness that satisfies, at a minimum, those parts of the evidence pertaining to occupation, use, fencing, access, improvements and identification referred to above that are within the witness’ knowledge.

3. Evidence by Applicant’s Current Practitioner

Where the period of possession relied upon is less than 30 years and the registered owner is a natural person, a statutory declaration by the applicant’s current practitioner that he or she has made diligent and thorough enquiries and:

  • is satisfied that the applicant and (if applicable) any other persons through whom the applicant claims, has or have been in adverse possession of the land for at least the last 15 years;
  • has no knowledge of any circumstances or disability on the part of the registered proprietor or any other person previously entitled to bring an action for recovery of the land which might have extended the period of limitation for doing so beyond 15 years; and
  • give details of any dispute by, or contact with, the registered owner or any other person claiming an interest in the land.
4. Assignment of Possessory Rights

Where the applicant has not been in possession for at least 15 years an assignment or chain of assignments of the possessory rights of the person or persons through whom the applicant claims should be produced. Each assignment should be by deed and be duly stamped or denoted by the State Revenue Office.

5. Rating Evidence

A letter from the Rate Collector (or other appropriate officer) of the municipality in which the land is situated which:

  • identifies the land claimed (eg. by annexure of a copy of the plan of survey); and
  • gives particulars of the person or persons who during the last 15 years have been recorded in the municipal records as the rated owner/s.

B. STRIPS AND SLIVERS
In the case of small pieces of land enclosed with other land owned by the applicant where there is no inconsistency between the chain of possession to the strip or sliver and descent of title to the land owned, no formal assignments of possessory rights will be required. In these cases the proofs and items required are:

1. Evidence of Applicant and Prior Possessors

Statutory declaration/s by the applicant and (if necessary to provide evidence for at least the last fifteen years) by each prior adverse possessor for their respective periods of possession to:

  • explain the circumstances in which possession commenced;
  • describe the use made of the land;
  • describe the position, nature and (where known) the age of the fencing, walls or buildings enclosing the outer boundary or boundaries of the land claimed;
  • state the value of the land claimed and the basis on which that value is calculated; and
  • state that no acknowledgment of ownership in respect of the claimed land or any part thereof has been given.

The declaration/s must identify the land claimed by reference to the plan of survey or aerial photograph as an exhibit (see IDENTIFICATION OF THE LAND).

Where the applicant cannot provide statutory declarations from any of the prior adverse possessors, the Registrar may require an increased contribution to the Consolidated Fund or further evidence from additional disinterested witnesses or a combination of both.

2. Surveyor’s Report

The plan of survey must be accompanied by a report by the surveyor as to the position, nature and age of the fencing, walls or buildings enclosing the outer boundary or boundaries of the land claimed. A Surveyor’s report should accompany Field Records.

3. Descent of Title

The descent of title, as shown by the folio of the Register or a search of title (as the case may be), to the remaining land within the boundaries enclosing the claimed land must be consistent with the chain of possession shown in the other evidence produced by the applicant.

4. Consent of Registered Proprietor or Optional Alternative Proofs

Either a consent and acknowledgment under seal by the registered proprietor of the claimed land stating that the applicant or prior adverse possessors through whom the applicant claims have possessed the land adversely to the title of the registered proprietor and his, her or their predecessors in title during at least the last 15 years and that the title of the registered proprietor to the claimed land has been extinguished by the applicant OR a statutory declaration by one disinterested witness which identifies the land claimed and establishes the witness’ means of knowledge (in the same way as required in EVIDENCE OF DISINTERESTED WITNESSES above) and describes the position, nature and (where known) the age of the fencing, walls or buildings enclosing the outer boundary or boundaries of the land claimed.

5. Evidence by Applicant’s Current Legal Practitioner

Where the period of possession is less than 30 years and the registered owner is a natural person, a statutory declaration by the applicant’s legal practitioner must be produced, stating that he or she has made diligent and thorough enquiries and he or she:

  • is satisfied that the applicant and (if applicable) any other persons through whom the applicant claims, has or have been in adverse possession of the land for at least the last 15 years, and
  • has no knowledge of any circumstances or disability on the part of the registered proprietor or any other person previously entitled to bring an action for recovery of the land which might have extended the period of limitation for doing so beyond 15 years.

Where strips and slivers are concerned, rating evidence is not required.

(The above material is an extract from “The Lodging Book – A guide to dealings a Land Victoria” 3rd edition, Department of Sustainability and Environment)

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