Adverse possession claims

In New South Wales, ownership of land can be claimed by someone other than the owner of the land by what is known as adverse possession. An application for adverse possession is made in one of two ways – by way of a possessory title application for Torrens Title land, or by way of a primary application for Old Systems land. Both applications are complex, highly technical, and lengthy. The matters to be addressed in a possessory title application and a primary application are similar.

The process

1.  Occupation

In order to make a successful application for adverse possession, the overriding criteria that an applicant must demonstrate is that they have used, and occupied, the land in question:

1. in an open manner – their holding of the land is not a secret
2. in a peaceful manner – they cannot hold the land by force
3. in a way that is adverse to the actual owner – the actual owner cannot have consented to the use of the land

The use and occupation of the land must be continuous, and to the exclusion of all others, for no less than 12 unbroken years. If the claim is against land owned by the Crown, the minimum time the land must be held for is 30 years. Without an unbroken chain of use and occupation to the exclusion of all others for the minimum period, the application will fail.

2.  Identification

Both the owner of the land, and the parcel of land, must be identified in any application for adverse possession. Generally, the owner of the land is ascertained by a specialist legal searcher who will search the records of land titles, Probate registers and death registers to trace ownership of the land and identify the “current” owner. For Old Systems land, this owner is often not the one registered with the land titles office but is a beneficiary of that person’s Estate.

The land in question must be identified as a lot in a plan, as a successful application will result in the land being converted to the Torrens Title system (if it is Old Systems title) and vesting in the applicant. Typically, the land is identified by way of a surveyor preparing a new deposited plan to be lodged with the application.

3.  Evidence of applicant

The applicant will need to provide evidence of continuous use, and occupation to the exclusion of all others, of the land in question as part of the application. This is done by way of statutory declaration.

If the land has been held by multiple parties over the 12 years (for example, if it was passed down through a family), evidence may be given by the predecessors of the applicant who held the land to the exclusion of all others. Together, the applicant and any predecessors in title must demonstrate exclusive use and occupation for the 12-year period.

Claims of exclusive use and occupation can be supported by showing that the applicant has paid rates and taxes for the land, has fenced off the land, has lawfully erected improvements over the land and has insured the land.

Documentary evidence, such as invoices for expenditure involving the land, can greatly assist the evidence of an applicant.

4.  Witnesses

Witnesses will need to reference the land being acquired in their evidence and provide evidence supporting the applicant’s assertion that they have continuously and exclusively used the land. It is helpful to have the surveyor prepare the plan that will be lodged with the application prior to approaching witnesses, to ensure the witnesses can clearly identify in their evidence the land the subject of the application.

5.  Further documentary evidence

The applicant will also need to seek a statement from Council essentially consenting to the application, and the applicant must demonstrate that there are no outstanding taxes or rates on the land (such as land tax or Council rates).

A valuation of the market value of the land will also need to be obtained by the applicant, as the application must be assessed for stamp duty with Revenue NSW.

6.  Initial assessment

The New South Wales Land Registry Services (LRS) will undertake an initial assessment of the application once all documents are completed and submitted. If the LRS considers that the application has merit, they will undertake a detailed assessment. Pursuant to s 14 of the Real Property Act 1900, the LRS can seek whatever further evidence it deems necessary to allow it to consider and assess the application.

7.  Notification

After the LRS has completed their examination, the application must be publicly notified in a local newspaper and a daily newspaper circulating in the State. Interested persons can lodge an objection in the form of a caveat with the LRS within one month of publication of the notice.

The outcome

If no objections are received, or the objections are subsequently resolved, the application will be registered, and the applicant becomes the registered proprietor of the land.

An adverse possession claim is highly technical, complex, and lengthy. Good legal advice, together with surveying and searching advice, is key to a successful adverse possession claim.