'It's The Law' – Understanding a possession claim

While you might not be familiar with the term ‘adverse possession’, chances are you have heard of the principle before, perhaps someone referred to the principle as ‘squatter’s rights’. 

Adverse possession is a legal rule that enables an occupier of a piece of land who does not own the land, to obtain ownership where the occupier can prove intentional and exclusive use of that land for at least 15 years uninterrupted.

Possession cannot be with the consent of the owner – such as under a lease – but importantly, whether the title owner realises they have been dispossessed of their land is irrelevant. 

You might have heard of a person taking possession of a residential property and then claiming title to it. 

However, such claims are rare. More commonly, adverse possession claims arise where fencing has been erected where it is not in line with the title boundary or in relation to the use of farm land.

Often the parties are not aware of the potential claim until the land is surveyed in the future. 

Proving an exclusive possession claim is not easy. 

If you think you have a case of adverse possession, think about what evidence you have to support it. What can be used to support your case, demonstrating your intent and exclusive use of the land? How will you prove your 15 years, or more, of use is continuous?

The fact that you have fenced off the area therefore excluding access and demonstrating systematic maintenance and land use would likely assist your claim.

If you believe you have a case – and the evidence to back it – you can lodge a claim at Land Victoria. It’s at this point the true owner is notified.

If you are the owner of land and Land Victoria has advised you of a claim against your land, you also need to seek advice and gather your evidence. 

Can you prove your use of the land? What evidence can counter the occupier’s claim on intentional and exclusive use?

There are steps that can be considered, but you also need to act carefully. 

For example, if your 15 years has not elapsed, you could act to regain possession. However, if it has, you might be trespassing.

This is a complex area of law, so if you think you have a case of adverse possession, please talk to a lawyer for advice on your specific circumstance. 

• Patrick Smith is the principal of O’Brien and Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien and Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.