Make sure your fence is in the right place.

Rose Lawyers on 24 May 2016

Does the physical boundary of your property match up with the title boundary? Making sure that the fence line is where it is supposed to be is an issue that's potentially worth thousands of dollars. Whether property on your title is being encroached upon by a neighbour's fence or you believe that you have the right to adversely possess land that isn't on your title, it's essential that you protect your interests.

This article will provide you with an overview of what adverse possession is and what is involved in a dispute.

What is adverse possession?

building new fenceAdverse possession is an application made to the Land Titles Office to correct a boundary because the physical boundary is different to the title boundary. When this occurs, it becomes a legal question as to who has the right to own the piece of land that is within the physical boundary but different to the title boundary.

In order for a landowner to lose the right to possess the land that is within another physical boundary, you need to show that you have had an intention to possess the land and uninterrupted possession of that area for a period of at least 15 years. If the land is part of an easement, like a sewer or drainage, the length of time needed to prove adverse possession is increased to 30 years. If the land is owned by the government, then you cannot adversely possess it.

Generally speaking, adverse possession disputes typically involves fence lines. This is because it is difficult to prove that you've had exclusive and uninterrupted possession of the land unless the area is fenced off.

How does adverse possession occur?

There are a number of situations that might cause the boundary in use to differ from what's on the title. Some of these include:

  • Fence line mistake – If a fence has been built in the wrong place, it could be encroaching on somebody else's land, or it may be that part of an easement has been fenced into somebody's property.
  • Miscalculated survey – If the survey was misread or miscalculated, there could be a mistake on the title which causes it not to match the boundary in use.
  • Subdivision mistake – If a mistake was made in the subdivision process, there might be part of the land that was never sold.
  • Land that nobody owns – Occasionally, you might find land that has been missed and isn't owned by anybody. This can happen if different surveyors have measured the land from different points and a portion of land has been overlooked.

What happens in an adverse possession dispute?

Disputes usually occur between neighbours because neither party will want to give up any land that they believe should belong to them. This is because if you are able to increase the size of your property, you'll also increase its value. Depending on the size of the land in dispute, it could be worth many thousands of dollars to the overall value of the property.

The proceedings of an adverse possession dispute can be very complex and confusing, and require a great deal of paperwork. It is essential that a lawyer or experienced conveyancer helps you with this process as it requires close communication with a surveyor and looking over many old records, including plans of subdivision, plans of consolidation and title plans.

Once it has been discovered who owns the land, the appropriate statutory declarations and application for adverse possession must be prepared in order to proceed with the claim.

houses lined up

Get advice from property law experts

At Rose Lawyers, we have been helping our clients with property law disputes for over 35 years. We have the expertise and the patience to ensure that all legal avenues are explored so that the size and value of your property are protected.

Ensure your property is protected, call Rose Lawyers on 03 9878 5222.