Adverse possession claims in residential
areas tend to fall into 2 categories. The first, is where the fence
line is misaligned with the title boundary. The second is where
your property has enclosed an old laneway, disused road or even
upon old creek lines.
Generally the first involves claiming the land against
your neighbour. The second can often be against the local council
or the person who originally subdivided the area and is now dead.
Note you cannot make an adverse possession claim against the Crown
or Crown land and in most cases you now cannot
claim against Councils because of legislative changes.
Adverse
Possession laws enables the occupier of a piece of land to obtain
ownership of it if they can prove uninterrupted and exclusive possession
of the land for at least 15 years. It is akin to "squatting"
on your neighbour's land or tacking is another term used.
The land that may be affected may be a sliver or be
quite substantial. The justification for claiming the land may be
monetary or may be very important vis a vis a subdivision or re-development
of the property or you simply want the fence lines to match and
coincide with the title boundaries
The claim may make the difference between getting
a planning permit for 4 townhouses rather than 3. One of the last
successful applications we made on behalf of a client involved an
“old road” which was 15 feet by 50 feet or 750 sq ft.
At $100 per square foot this land was worth $75,000. Land in other
areas like Brighton is now worth over $200 per square foot.
Another client wanted to put a swimming pool
in the back yard on land that did not belong to them. The City of
Glen Eira council would not grant a permit until the client could
prove ownership of the land. The land was of a significant area
and abutted the old creek. Nearly twelve months later, they have
successfully claimed the land. Most of the delays can be attributed,
not to any complexity of the claim, but to the Land Titles Office
Victoria being understaffed
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What is required
in making an adverse possession claim?
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Plan
Survey |
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Proof
of continuous possession of the land for over 15 years by you
and the previous owners. |
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Arial photographs can be helpful
and affidavits of the owner(s) and neighbours are required. |
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Advertising and contribution levy. |
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Land Registry
Application in the prescribed form under Section 60 Transfer
of Land Act (Victoria) |
What is the Cost?
A survey will cost $2000+, legal fees are approximately the same
plus application fees, advertising and the contribution levy. All
up the cost would $6000.
If successful, the Land Title’s Office will issue you with
a new Certificate of Title for the land claimed
We are often asked the question: "a developer
has bought the block next door and wants to remove or replace the
dividing fence and move the fence to the correct survey line".The
developer is entitled to do this, unless you are prepared to defend
the fence line. You must be prepared to make an adverse possession
claim and prove your claim. You need to call in a surveyor to at
least correctly record where the current fence line is and you need
to take photographs to record the status quo. We are Melbourne based
lawyers and can act on your behalf; put the developer (owner next
door) on notice; perhaps lodge a caveat; and prepare the application
on your behalf.
Court action is a last resort option but this
cannot be discounted. Court costs would significantly add to the
cost of any claim or defence.
Making an adverse possession claim is not the only option.
For example, you could enter into an agreement with the neigbour to leave the fence where it is.
In any case, it is recommended the agreement is made in writing.
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