Adverse possession occurs when another person's land is intentionally used and all other parties are excluded from its use for more than 15 years.

Section 8 of the Limitation of Actions Act 1958 (the Act) provides that no action shall be brought by any person to recover land after the expiration of 15 years from the date on which the right of action accrued. Section 18 of the Act provides that at the end of that period, the person's title to the land shall be extinguished.

Claims for adverse possession can no longer be made for land owned by the Crown, the Public Transport Corporation, Victorian Rail Track, water authorities and, since January 2005, council-owned Torrens land.

The leading case/authority in Victoria on adverse possession is the case of Abbatangelo v Whittlesea City Council. This case is discussed in our article which can be found below titled “Whats Yours is Mine, Adverse Possession in Victoria”. Tisher Liner & Co acted for Mrs Abbatangelo (the successful party) in the initial case and at appeal in the Court of Appeal.

Examples of adverse possession may include
(but is not limited to):

• A fence not in alignment with the title boundary;
• A building or structure placed over another persons title boundary;
• The deliberate enclosure or use of another person's land without that owner's permission.

If you did not measure and survey your land when it was purchased to confirm the boundaries match what is on your title, you may unknowingly already have an adverse possession claim against a neighbour, or a neighbour may have an adverse possession claim against you.

Do you have a claim or you are not sure if you have an adverse possession claim?

Do your boundaries on your land match up with the boundaries as set out on your title?

Is someone making an adverse possession claim against you?

You should act quickly when an adverse possession claim is made against you or when circumstances arise which may impact on a potential adverse possession claim you have against another. Once an adverse possession claim is made, the true owner may attempt to retake control of the property. If possession is interrupted within 15 years, the adverse possession claim may be defeated. You should receive legal advice immediately to ensure that your adverse possession claim is assessed properly and that you take all necessary steps to enforce your claim or defend your adverse possession claim as applicable. Delaying action on a claim could be severely detrimental to your legal position.

Contact Jonathan Tisher or Phillip Leaman to arrange a time to come in and have a conference to get further advice about adverse possession.

Please click here for a profile on Jonathan Tisher and Phillip Leaman.

You can also view the following Tisher Liner & Co documents which provide further
information on Adverse Possession.