Adverse Possession in Victoria: Can Occupation Lead to Ownership?

An old fence, a garden extending over a boundary or long-standing use of a neighbouring strip of land can raise a difficult question: who legally owns the land? In some circumstances, a person who has possessed land that belongs to someone else may be able to claim title by adverse possession. The requirements are strict, and long use alone is not enough.

What is adverse possession?

Adverse possession involves occupying land in a way that is inconsistent with the legal owner's right to possess it. In Victoria, a claimant generally needs to establish at least 15 years of uninterrupted, exclusive possession of the particular land claimed. The relevant period and the point when it begins depend on the facts and the Limitation of Actions Act 1958 (Vic).

The claimant must show both physical possession and an intention to possess the land as their own, to the exclusion of others. A person occupying land with the owner's permission, such as under a licence, will generally not be possessing it adversely during that period. A belief that the land was already yours does not, by itself, establish or defeat a claim; what was done on the land matters.

What evidence can support a claim?

Evidence might include fencing and maintaining the area, building on it, cultivating it or otherwise controlling access and use. Historical photographs, plans, records of works, correspondence and accounts from people familiar with the property can help show what happened and when. Payment of rates may be relevant, but it does not by itself prove exclusive possession.

The acts needed to establish possession depend on the nature and size of the land. A fenced strip beside a house may be assessed differently from a larger rural parcel. If several occupiers' periods of possession are relied on to reach 15 years, evidence of the earlier possession and the transfer of possessory rights may be needed. A gap in adverse possession before the period is complete can affect the claim.

How is an application made?

For land registered under Victoria's Torrens title system, an application can be made to the Registrar of Titles under section 60 of the Transfer of Land Act 1958 (Vic). A claim generally requires a clear description of the land, supporting statutory declarations and other evidence, and a survey where required. The Registrar may request further material. The documents needed depend on the land, its title and the history of possession; there is no single checklist that fits every claim.

General law land follows a different title process, including applications under section 15 of the Transfer of Land Act. A title search and survey advice can help identify which process applies. Where the Registrar approves a section 60 vesting order, it is referred for duty assessment before registration is completed.

Can any land be claimed?

No. Victorian law protects certain land and owners against adverse possession claims, including Crown land, land held by specified rail and water authorities, and qualifying council land. It also protects owners corporation common property against adverse possession by another owner of a lot in that owners corporation.

The exact legal status of land matters. For example, a road, reserve, easement and privately owned strip of land are not interchangeable categories. A claim to ownership of land is also different from an application concerning an easement. Check the title and the applicable law before assuming that an occupied area can, or cannot, be claimed.

What if someone claims part of your land?

Act promptly if you receive notice of a claim or discover that a neighbour is occupying land you believe you own. Obtain a current title search and a survey if the boundary is uncertain, preserve photographs and correspondence, and seek advice about your options. In an application under section 60, a person claiming an interest may be able to lodge a caveat before the application is granted.

Simply objecting or entering the land briefly may not preserve an owner's rights. The right response depends on whether the occupation was ever permitted, how long it has continued and whether court or Titles Office steps are needed. Avoid removing a fence or attempting to evict an occupier without advice.

Whether you are considering a claim or responding to one, Baird & McGregor can help assess the title, the evidence and the available options. Contact our property law team to discuss your circumstances.