A well-respected Victorian mediator conveyed it best when he said “adverse possession is a fascinating area of law, except for those embroiled in adverse possession litigation.”

For those involved in a litigation dispute, adverse possession is complex, often factually messy and costly.

Adverse possession is a doctrine deeply rooted within the principles of old English common law and permits applicants to challenge the Torrens System and claim the exception that adverse possession provides to the indefeasibility of title.

The rationale behind adverse possession is that a system of land law based on the prima facie notion of a paper tile eschewing absolute possession, is as a concept, fundamentally flawed. Adverse possession by nature of its very existence, presents opportunities for others to claim better title through possession and modern adverse possession has now become a hybrid mix of statute and common law principles shaped over time by those trying to enforce the benefit in procuring land that adverse possession provides.

Adverse possession in its simplest form enables an occupier of a piece of land to be able to claim land if uninterrupted and exclusive possession of the land can be proven for at least 15 years. Claims in adverse possession cannot be made against the Crown, land owned by the council or other authoritative government bodies or the common property of an owners corporation pursuant to sections 7-7C of the Limitation of Actions Act 1958 (LAA).

Section 8 of the LAA precludes an individual from claiming land through adverse possession once the 15-year time period of exclusive and uninterrupted possession has ensued and section 18 of the LAA provides that after the 15-year period, the previous owner of the land has extinguished any right to the land that has been adversely possessed.

Individuals who believe they have a claim in adverse possession in Victoria would bring an action under section 60 of the Transfer of Land Act 1958 and would be wise to access the Land Victoria website, which provides an easily accessible checklist for documents and other empirical evidence that parties will need to bring a claim, inclusive of any prescribed fees.

Included in the checklist, among other things, is the notion that applicants should submit boundary plans, statutory declarations from themselves, their solicitors and disinterested witnesses such as neighbours and deeds from predecessors in title, who can attest to the presence of fences and boundary lines during their time of occupation. Applicants should also obtain aerial photographs which can be persuasive in establishing possession particularly when the 15-year time period required could be called into question.

Despite the accessibility to a checklist on the Land Victoria website of what is required to bring a claim, adverse possession can be difficult to prove, as matters that progress to the throes of litigation will turn on the factual matrix that each party can present. When matters proceed to litigation, it is often because each party feels entitled to the parcel of land and the empirical evidence as presented by the parties will drive the outcome in each adverse possession claim.

A leading authority in adverse possession is the case of Abbantangelo v Whittlesea City Council and the Court of Appeal set out a number of principles that are necessary to prove adverse possession, although the circumstances of each claim will differ. Among the principles set out in Abbantangelo, it is surmised that in establishing adverse possession, although the owner of land with title has the prima facie better title, this ‘better title’ can be challenged if an alleged possessor shows both factual and exclusive possession and animus possidendi, which is an intention to have exclusivity over the land. The intention of animus possidendi can be inferred from the acts of physical possession and need not be a conscious possession, but it must be clear that the intention to possess is to the exclusion of all others. The acts of physical possession can be demonstrated by a fence or the use of the land for one’s own private purposes which can be tantamount to establishing the enjoyment of a special benefit that possession would entail.

Despite the availability of information on adverse possession, individuals should not be fooled into believing that proving adverse possession is a relatively easy process. As stated by a wise mediator, the legal principle of adverse possession and the factual matrix of the cases that are presented are only interesting to those who are not engaged in the costly and messy throes of litigation. Often, individuals will begin proceedings to defend adverse possession claims based on principle and may be left wishing they sought the appropriate advice before embarking in such a complex area of law.

Individuals who think they have a claim or who have been presented with a claim for adverse possession on their land should engage the services of a solicitor well versed in the area and obtain the appropriate legal advice.