Adverse Possession – FAQs

Adverse Possession – FAQs

What is adverse possession?

Pursuant to s8 of the Limitation of Actions Act the title owner of land loses the right to claim repossession of that land after 15 years (subject to qualifications). At the expiration of the 15-year period the title to the land is extinguished (s18).

I think my boundaries are out what should I do?

You should engage the services of a registered surveyor to survey the land and ascertain the true position.  We can refer you to a registered surveyor who can conduct the survey work for you.

I’ve adversely possessed land for over 15 years, do I need to make an adverse possession application to the Land Titles Office?

Generally, you don’t need to make an application. The title owner of the land has lost their right to recover possession and their title has expired.  However, there are some circumstances where you should make an application.  Making a successful adverse possession application to the Land Titles Office will result in a title to the adversely possessed land being registered in your name. Contact us to discuss your circumstances.

I haven’t adversely possessed the land myself for 15 years can I still make an adverse possession application?

Provided you can prove that the land has been continually and exclusively possessed for 15 years, it doesn’t matter that you have not personally been in possession for the whole 15-year period.  The land may have been possessed by a prior owner, or by tenants.  The Land Titles Office will generally require an Assignment of Possessory Rights transferring the rights of possession from the prior possessor to you in order from you to lodge an application at the Land Titles Office.

I can’t locate the prior possessor, what can I do?

Sometimes it is very difficult to track down a prior possessor, but there are numerous searches that can be made and avenues that can be explored to locate these persons.  We can assist you in this process.

Can I prove adverse possession without a fence?

It can be difficult to prove that land has been continuously and exclusively possessed without a fence fully enclosing the land in question, but it is not always fatal.  We can consider and assess what evidence you have as to exclusive possession.

Can I adversely possess common property?

A lot owner cannot adversely possession common property on the same plan.  However, common property can be adversely possessed by someone who is not a lot owner. For example, if you have adversely possessed a strip of land adjacent to your title land that is common property of the neighbouring block of flat, the owners of the block of flats who own the common property have lost the right to recover possession of that strip of land.

Can I adversely possess council land?

The short answer to this question is no you cannot adversely possess council land.  However, the difficulty often arises in ascertaining whether land is actually council land or not.  We can consider the facts in your matter and advise you accordingly.

For more information please contact our friendly and professional team at Peter Speakman & Co on 9822 8611.