A property developer in Sydney has succeeded against the relatives of a deceased property owner in his right to the title deed of a home in the inner Western Sydney suburb of Ashbury.

This case has captured media attention throughout its journey in the courts, as many people watch in disbelief that a person in this modern age can lay claim to another’s person title simply by “squatting” for long enough.

The legal principle of adverse possession makes it possible for a person to claim land that is titled to someone else. That land claimed may be just a sliver or, as in the abovementioned case of McFarland v Gertos [2018] NSWSC 1629, something more substantial, like someone else’s entire home.

The McFarland case is of course a rare and extreme example of the failure of a landowner to exercise and defend their property rights from a squatter however the legal doctrine of adverse possession is still very much applicable today and arises more than you may think in everyday property transactions and projects.

Adverse possession in Victoria

Adverse possession varies from state to state. In Victoria, put very simply, adverse possession occurs when another person’s land is intentionally used, and all others excluded from its use, for more than 15 years. At the end of that 15-year period, the adverse possessor acquires legal title to the land while the person’s title is extinguished. It can be said that adverse possession rewards productive use of land.

In an urban context, more common adverse possession matters often involve a fence or dividing structure that is off-boundary or a protruding structure such as a column, downpipe or stone foundation. In the older, inner-city suburbs of Melbourne, it is not uncommon to discover (often as a revelation to the owner) that their property occupies part of an old laneway or discontinued road. Potential claims can become apparent in the course of an ordinary sale or purchase and the assignment or the legal recognition of such an interest may be significant in monetary value or otherwise vital to how a property may be approved by council for subdivision or redevelopment.

How do I make an adverse possession claim?

While the elements required to establish adverse possession are well settled in Victoria, the nature of the evidence that is needed to satisfy each element, particularly with respect to applications made to Land Use Victoria, has become noticeably more sophisticated in recent years. It is important therefore to ensure that you have the appropriate evidence at the outset to support your application for adverse possession before making a claim. Failure to properly prepare an application or prematurely asserting a claim can result in lengthy delays and additional costs or even in having a claim defeated or forever lost. In the same way, the timely intervention by a landowner, having received sound legal advice, can avoid or defeat a claim.

If you have any questions or queries regarding adverse possession, the Madgwicks Property team can assist.

About the Author

Bethany Visser

Senior Associate
Bethany is a detail driven lawyer possessing experience working with a variety of different stakeholders in a number of areas of property and construction law.

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