Liv­ing on land pos­sessed

Herald Sun - Property - - FRONT PAGE -

POS­SES­SION is nine-tenths of the law, so the say­ing goes. And, as a gen­eral rule, pos­ses­sion of land is a com­mon in­di­ca­tion of own­er­ship. To use land that you do not own and with­out that owner’s au­tho­ri­sa­tion amounts to tres­pass.

How­ever there are cer­tain in­stances in which a per­son, known as an ad­verse pos­ses­sor, who oc­cu­pies the land of an­other, can claim that land as their own and pre­vent the true owner from do­ing so. That is, an ad­verse pos­ses­sor may of­fi­cially ap­ply to the Reg­is­trar of Ti­tles for the for­mal trans­fer of that piece of land into their own name.

Such an ap­pli­ca­tion is known as an ad­verse pos­ses­sion ap­pli­ca­tion. So where would this law typ­i­cally ap­ply? An ex­am­ple may be a fence that has been in­cor­rectly po­si­tioned be­tween two properties.

In this ex­am­ple the properties on ei­ther side of the fence may have been sold nu­mer­ous times be­fore the er­ror is dis­cov­ered.

In or­der to lodge an ad­verse pos­ses­sion ap­pli­ca­tion you must be able to demon­strate a min­i­mum of 15 years un­in­ter­rupted and ex­clu­sive pos­ses­sion of the land be­ing claimed.

Es­sen­tially the ad­verse pos­ses­sor must act as if they are the true owner of the land rather than sim­ply oc­cu­py­ing the land.

This can also ex­tend to the ad­verse pos­ses­sor ex­er­cis­ing own­er­ship rights such as rent­ing out the piece of land or al­low­ing other third par­ties to use that land.

How­ever, it is im­pos­si­ble to ad­versely pos­sess ei­ther Crown or coun­cil owned land.

Lodg­ing and sub­stan­ti­at­ing an ad­verse pos­ses­sion claim is an in­volved and com­plex mat­ter.

The Reg­is­trar of Ti­tles, prior to ap­prov­ing a claim, must legally sat­isfy them­selves as to ev­i­dence pro­duced in sup­port of that claim.

As part of that process and in or­der to ac­tu­ally de­ter­mine if you are ad­versely pos­sess­ing prop­erty, you must un­der­take and com­plete what is known as a ‘‘check sur­vey’’.

This is com­pleted by a sur­veyor and if nec­es­sary that sur­veyor should be pre­pared to pro­vide ev­i­dence to the Court.

The check sur­vey will dis­close the cor­rect ti­tle bound­ary, as de­ter­mined by the orig­i­nal plan of sub­di­vi­sion as com­pared to the cur­rent ti­tle bound­aries as they sit on the ground.

This will en­able a com­par­i­son to be made and de­ter­mine ex­actly what is be­ing ad­versely pos­sessed and claimed.

The Ti­tles Of­fice does per­mit a mar­gin of er­ror (up to 50mm in any di­men­sion up to 40m in length) and they will ig­nore what they con­sider to be a ‘‘tri­fling en­croach­ment’’.

In the event the check sur­vey dis­closes a claim, you or your lawyer must then com­plete the ap­pli­ca­tion pro­vid­ing other an­cil­lary ev­i­dence.

Once com­pleted the ap­pli­ca­tion is lodged with the Reg­is­trar of Ti­tles who will make a de­ter­mi­na­tion as to the claim.

Sub­ject to that de­ter­mi­na­tion there are rights of ap­peal to the Supreme Court.

As al­ways this ar­ti­cle con­tains gen­eral in­for­ma­tion only and should not be re­lied on for de­tailed ad­vice re­lated to your par­tic­u­lar cir­cum­stances. Should you re­quire such ad­vice, please con­tact your lawyer. Adam Zu­chowski is a se­nior as­so­ciate and prop­erty spe­cial­ist with Slater & Gor­don Con­veyanc­ing. adam.zu­chowski@slater­gor­don.com.au

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