Adverse Possession & Boundary Disputes
Almost everyone has heard the phrase ‘possession is nine tenths of the law’. In the case of Adverse Possession, it is possible for the owner of land to lose that ownership in certain circumstances where a third party has possessed that land, adverse to the interests of the owner – hence the term Adverse Possession.
Whether you believe you have a claim against someone’s land, or someone is claiming against your land, it is important that you act to formalise your claim (or prevent a claim from crystalising) as there are several ways in which an Adverse Possession claim may be defeated.
A person with a claim of adverse possession of land may make application to the Registrar of Titles to formalise that claim. If the Registrar is satisfied that the claimant has established their adverse possession of the land and all other criteria have been met, the Registrar will issue a new Certificate of Title in respect of that land, showing the claimant as the registered proprietor of that land.
Generally, though not necessarily, the application process begins with a survey of the land in order to determine the precise location of the physical boundaries versus the title boundaries. Once the land has been identified, a series of searches are undertaken in order to determine the precise legal status and nature of the land. These preliminary searches allow us to determine whether your application to the Registrar is likely to succeed and advise you accordingly.
If our analysis of the searches indicates your application is likely to succeed, we would then guide you through the process of gathering the evidence required and proceed to make application to the Registrar on your behalf.
We are often asked about the timeframe of the application process. This is a difficult question to answer, as the time required for survey, evidence gathering process and examination of the application by the Titles Office can vary significantly. As a general guide, it may be as much as three months, and sometimes maybe as much as six months for your application to be processed and a Title issued. If your application is opposed, then the timeframe can increase significantly.
Some of the elements of Adverse Possession include:
• The possession must not be secret and must not be by force
• Open and exclusive possession for a continuous 15 year period
• Intention to possess the land (such as fencing or payment of rates)
• Possession without the permission of the title holder
Amending the description of land on title
Not every dispute over property boundaries involve Adverse Possession. The physical boundaries of your property may not accord with the title boundaries for a number of reasons, including:
- Errors in a previous survey;
- An inaccurate previous survey due, for example, to the use of older, less accurate survey equipment; and
- Physical boundaries, such as fences, may have been moved by previous occupants.
In this situation, an application may be made to the Registrar of Titles to amend the description of the land on title in order that it accords with the physical occupation of the land.
In our experience, it is often the case that the physical boundaries of an entire street will be ‘offset’ as compared to the title boundaries. So, for example, the title may gain land on the western boundary but lose a similar area of land on the eastern boundary.
No changes occur to the physical occupation of the land, rather the title is amended to reflect the true, physical position. As with an Adverse Possession application, the process generally begins with a survey of the land.
Worried that your neighbour is encroaching on your land?
Speak with us today to protect your rights.