The concept of legally taking over someone’s land without making any payment is what we call an adverse possession. Adverse possession claims are controlled by specific Australian rights and involve specific requirements. If you are new to this world, the whole procedure may seem pretty complicated, and therefore, we always recommend consulting adverse possession lawyers before you proceed. This blog discusses important details regarding adverse possession of a property.
What Is Adverse Possession?
Adverse possession is the process where you can acquire the rights of property owned by another person without any compensation. When it is imposed, the true owner is extinguished of their title.
What Are The Requirements?
The three key requirements are discussed below.
Time limitation is an essential requirement that applies to adverse possession. For example, in Victoria, the land must be possessed for at least 15 years to become eligible for adverse possession.
If the claimed area includes a reserve, road, or easement, you will need to prove that it was not used for the last 30 years. Even if there is an easement, the applicant must prove that it was not used for 30 years.
The applicant will also have to prove actual possession, which must be peaceful and open and not be done by force. It should also not involve any consent of the owner because it is considered irrelevant in the case of adverse possession.
If an adverse possessor abandons the possession before the limitation period expires, they will lose the right to make any claim for adverse possession. But if it is abandoned after the limitation period ends, the true owner will lose their title.
Another significant evidence of possession is related to intention. Keep in mind the following factors.
- Personal convenience has no role to play.
- Payment of rates and fencing of land indicates there is an intention.
- If there is enough clarity in the possessor’s objective intention, no inquiry will be made for the possessor’s subjective purpose.
- If a claimant is willing to accept a lease or license from the actual owner, it will not constitute any intention.
What Acts Are Relevant To Adverse Possession?
There are a significant number of acts that are relevant to adverse possession. These acts include:
Enclosure or fencing serves as strong evidence of adverse possession and extinguishment of the true owner’s title. However, you should also note that even when you enclose a particular section of land, make sure there is insufficient use of the piece of land to prove exclusive possession.
Occupation by residence/building on the property
Under this act, people either construct a house on the property or move into an already existing property.
Leasing the property
You can also lease the property to any other party.
Use of the property to plant trees, run livestock or grow crops
Under this act, you may breed cattle, maintain plants, trees, and gardens, or recruit a person to look after lawns.
To prove your possession of the land, you can pay for rates and taxes.
Remember that even if one or more items are absent, it will not directly prove a lack of possession. To judge each case, individual circumstances for the possessor and land characteristics will be considered. In addition, the law will also consider the circumstances of the original owner.
Another thing to consider is that particular actions like allowing ponies to graze on the land or allowing children to play there will not be considered a possession but a special benefit.
What Documents Should You Submit For A Claim?
To make a complete claim, you have to submit several documents. If you consult any property lawyers from Perth, they can help you arrange the following paperwork.
Application for a vesting order along with payment of the required fee
This approved form must be submitted with the following documents. The fees will differ based on whether a survey is needed.
Statutory declaration attesting to the land occupation
The statutory declaration must include the following information:
- The postal address of the claimed land
- The name and address of the municipality where the land is placed
- The value of the claimed land
- The circumstances in which possession was made
- Evidence that the land was enclosed
- Description of the land use
- Description of the improvements made on the land and related circumstances
- No acknowledgement of ownership
Disinterested witness statutory declarations
A disinterested witness is someone who provides a statutory declaration for the claimed land but is uninterested in the property.
The statutory declaration has to fulfill the following requirements.
- It should identify the land claimed by the survey plan reference as an exhibit.
- The witness should declare how they have known the land for a minimum of 15 years.
- The witness should also declare how they have gained the knowledge.
- The statutory declaration should deal with parts of the evidence related to occupation, enclosure, use, improvements and access needed from the applicant.
Statutory declarations from the previous owner
Even if the applicant has not possessed the land for an entire 15-year period, adverse possession can also be claimed. The total period must also include the period possessed by the previous owner, and the combination of both must satisfy the 15-year mark.
The document will include a letter from the Council regarding the payment of rates.
Survey plan, field record abstracts and reports by original surveyors
The documents will include a survey plan or aerial photographs. However, a survey will not be necessary if the claimed land is completely enclosed by:
- Land that the applicant is entitled to
- Government roads or crown land
- Both of the above
Evidence by applicant’s solicitor
Your solicitor should also provide a statutory declaration to confirm that he has made sufficient inquiries and is satisfied with the fact that you have adversely possessed the land for a minimum of 15 years.
Property lawyers in Perth can help you understand the essential features of the law controlling adverse possession in Australia. If you start with your procedure, send an email mentioning your conditions and requirements, and they will provide you with professional guidance.