Can someone claim part of your land through adverse possession?

Emma Buchanan

Special CounselAitken PartnersView Profile

Kara Inglese

LawyerAitken PartnersView Profile

Imagine discovering that the fence between your property and your neighbour’s property does not follow the legal boundary. Perhaps your neighbour has used part of your land as their own garden, driveway or backyard for many years. While this may have started as a simple boundary mistake, it may eventually allow your neighbour to claim legal ownership of these parts of your land.

Timing is crucial for adverse possession claims. Property owners should understand and recognise warning signs, deal with boundary issues early and protect their interests before they potentially lose title to their land.

What is adverse possession?

In Victoria, adverse possession allows a person to obtain legal (possessory) title to land where they can demonstrate that they have had uninterrupted and exclusive possession of that land for at least 15 years. They must meet certain evidentiary requirements and some exclusions apply.

Adverse possession claims can involve all or part of a property. Partial land claims commonly arise where an existing fence does not match the legal title boundary and a section of Neighbour A's land has been used by Neighbour B as their backyard for many years.

However, Neighbour B bears the onus of demonstrating to the Victorian Registrar of Titles that the criteria for possessory title have been met so that Neighbour B can have the title to the land recorded in their name.

Neighbour A's lack of awareness about the incorrect boundary will not necessarily prevent a claim.

Certain types of land are also protected from adverse possession claims, including Crown land, common property affected by an owners corporation and land owned by councils, water authorities and other public bodies.

What must someone prove to claim your land?

A successful adverse possession claim generally requires evidence, for a minimum of 15 years, of both:

• Factual possession: The claimant has exercised physical control over the land.
• An intention to possess: The claimant intended to possess the land to the exclusion of others, including the registered owner. For example, if they occupy the land by agreement with you (for example, as a tenant) they do not occupy as an adverse possessor.

The evidence required will depend on the nature and use of the land. Relevant evidence may include fencing, landscaping, maintenance, buildings, restricted access, photographs, survey plans and statutory declarations from the claimant, a legal practitioner and disinterested witnesses.

A single action, such as mowing grass or maintaining a garden, may not be enough on its own. The claimant must establish possession that is exclusive, continuous and consistent with ownership throughout the relevant period.

If a claimant has not been in possession for 15 years, they may still be able to make a claim if they have received a transfer, by deed, of possessory rights from prior possessors which demonstrates the chain of adverse possession for 15 years.

Is the title to the possessory land automatically updated after 15 years?

Although a possessor of land may have met the criteria for a successful claim, reaching the 15-year period does not automatically update the title to the land to register the possessor as the owner.

A claimant generally needs to apply, through their legal practitioner, to the Registrar of Titles for a vesting order under section 60 of the Transfer of Land Act 1958 (Vic). The application must be supported by evidence as noted above, and affected parties may be notified and given an opportunity to object.

How can property owners protect their land?

Property owners should not ignore unclear boundaries, long-standing fencing discrepancies or unauthorised use by neighbours, bearing in mind the 15 year threshold for potential possessory claims.

Obtaining a title search and engaging a licensed surveyor can help establish whether the physical fence line matches the title boundary.

If you are concerned about a potential adverse possession claim, consider:

• checking the title and plan of subdivision;
• obtaining a licensed land survey;
• keeping records of any agreement allowing another person to use the land;
• addressing encroachments or boundary discrepancies promptly; and
• seeking legal advice before removing a fence or restricting access.

Early advice can help clarify your ownership rights and reduce the risk of claims.

Get advice about adverse possession and boundary disputes

If you have concerns that someone is occupying part of your land, or you believe you may have rights over neighbouring land, Aitken Partners can help you understand your legal position and advise you on the next steps. Contact our lawyers on 03 8600 9000 to discuss your circumstances.