Adverse Possession

Part 7A of the Real Property Act 1886 deals with adverse possession claims.

A person claiming title to property which does not belong to them on the basis of possession must apply to the Registrar-General for title to that land (s.80A). A claimant must prove fifteen years of uninterrupted use of the land being claimed. The claim must be supported by a statutory declaration from the person claiming title, showing their intent to possess the land exclusively. In addition to fencing off the land, a strong indication of the claimant’s intent could be shown if they had been paying council rates for the land possessed. None of the ratepayers will be paying rates on the land they are unlawfully occupying.

If an application for adverse possession is not rejected outright by the Registrar-General, then notice of the application must be given (in this case) to the Council (s.80E(b)).

If Council, as the registered proprietor, lodges a caveat forbidding the grant of the application pursuant to s.80F(1), then S.80F(3) of the Act provides that the Registrar-General must refuse the claim. That section effectively gives council an absolute or unconditional right of veto.

Claims of adverse possession are notoriously difficult, lengthy, and the onus of proof is on the claimant.

In addition, Australia, as well as New Zealand, Canada and the United States, seems to be moving towards consensus that adverse possession of any duration should not extinguish title to land held by the Crown, councils and certain public or private bodies which hold land for public purposes such as roads, parks, water catchment and supply, and public transport.

There are two main justifications for this position: It can be said that the State owns the land on trust for the community and for future generations, who should not lose their patrimony because of the negligence of state officials in failing to eject trespassers. The second justification is that government agencies own many widely dispersed parcels of unfenced land which are difficult or costly to patrol against trespassers. Boundary encroachments, in particular, are difficult for government employees to detect without undertaking a re-survey. This creates a risk that public land will be eroded by deliberate encroachments such as occurred in Monash City Council v Melville.**

The issue of some ratepayers who overlook the billabong illegally fencing off council land needs to be addressed by Council now, particularly insofar as No 5 River Street is concerned as that infringement is quite recent, but Council would be well advised to address this issue in respect of all other landholders who are encroaching as well and give notice to them that they are trespassing on Council land and they must move illegal fences back to the boundary of their own properties. Even if those fences have been there longer than 15 years, the only recourse the landowners would have would be to try to claim title by adverse possession and they would then be saddled with the costs of mounting a claim that is highly unlikely to succeed. The longer Council delays on this issue, particularly as it is now aware of the infringements, the worse it will become. Council should be on the front foot issuing notices to the landholders, not waiting for an adverse possession claim which could bog everything down for years to come and ultimately result in additional costs to Council.

If the land has been leased to a claimant, this precludes any claim of adverse possession. However, pursuant to the Linear Parks Act 2006, the Council cannot lease any of the land to ratepayers who are infringing on the land adjoining the Billabong.

Footnotes

* ”The Private Taking of Land: Adverse Possession, Encroachment by Buildings and Improvement Under a Mistake”, Pamela O’Connor, Associate Professor of Law, Monash University, (2006); 33 UWAL REV 31@ 35 br>
** @p.34.