Adverse possession is a legal principle that enables a person who is not the legal owner of a piece of land to obtain ownership over it, if they can prove that there has been an uninterrupted and exclusive possession of that land for at least 15 years.
A person who succeeds in an adverse possession claim over a piece of land will acquire legal title to that land, and the legal rights of the land’s original titleholder will be extinguished.
Claiming adverse possession is a complicated legal process. A person needs to satisfy the key principles of adverse possession and meet the evidentiary requirements under the Transfer of Land Act 1958 (Vic).
Principles of adverse possession
The leading authority on adverse possession in Victoria, the case of Abbatangelo v Whittlesea City Council  (Abbatangelo), established three key principles that a person claiming adverse possession must satisfy. They are:
- The 15-year limitation period
Section 8 of the Limitation of Actions Act 1958 (Vic) provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action is accrued.
Section 18 of the Limitation of Actions Act 1958 (Vic) further provides that at the expiration of that period, the person’s title to the land shall be extinguished.
These two sections provide the groundwork for the principle that for a person to adversely possess someone else’s land, they must be in possession of that land for at least 15 years.
- Factual possession
A person claiming adverse possession of a piece of land must show that they have had single, exclusive continuous physical possession of that land that is open and not secret, and that was not obtained by force or through the consent of the true owner.
The acts that constitute a sufficient degree of exclusive physical possession over a piece of land by a claimant depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. However, some of the more common acts include:
- The land being completely enclosed by a boundary fence that is owned;
- The physical occupation of the land by a claimant;
- The building of structures on the land; and
- The use and regular maintenance of the land by the claimant;
- Payment of the rates for the land to the local counsel;
- Intention to possess
A person claiming adverse possession must also show that they objectively have an intention, under their own name and on their own behalf, to exclude the world at large, including the legal title owner, so far as is reasonably practicable and so far as the processes of the law will allow.
An intention to exclude does not necessarily require a claimant to demonstrate a conscious intention to exclude the legal title owner, but it does require a claimant to show a clear intention to control the land, and a belief by them that they are the true owner of that land.
A claimant needs to demonstrate acts of firm control, such controlling the only means of access to the land (e.g. locking a gate) or the regular use and maintenance of the land (such as mowing the grass or maintaining the boundary fence). Acts which amount to no more than the enjoyment of special benefits or are otherwise open to more than one interpretation (such as using the land for grazing animals or using the land for recreational purposes) will not be sufficient to demonstrate a clear intention to exclude and dispossess the legal title owner.
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