Adverse Possession

Guiding you through the process of making a claim, or challenging an Adverse Possession claim that has been made on your land.

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Adverse Possession Lawyers Geelong & Melbourne

The Coulter Legal Property & Development team can guide you through the process of making a claim, or challenging an Adverse Possession claim that has been made on your land. 

What is Adverse Possession?

Essentially, Adverse Possession allows a person to claim title to land that is not owned by them. It occurs where a person has had exclusive possession of land for a period of 15 years without the consent of its true owner. For a claim to be eligible, the land must have been possessed exclusively by the person making the claim and not be of shared or communal interest.

When does Adverse Possession arise?

Commonly, Adverse Possession arises in instances where fences or buildings encroach over a title boundary, or where someone has fenced off and used areas of land that do not belong to them. It can also be applicable when a property has been sold, but it is then brought to the vendor’s or purchaser’s attention that the physical boundaries do not match the title boundaries. It is important to obtain legal advice to ensure that appropriate steps are taken in order to secure your adverse possession rights, or to prevent a person or neighbour from claiming your land.

How do I claim a title through Adverse Possession?

Coulter Legal can assist you with applications made to Land Use Victoria, or the courts for an order vesting title to the adversely possessed land in the applicant. The type of application used and the approach taken will depend on the unique circumstances of each case. Accordingly, it is recommended that you seek the advice of one of our lawyers if you believe that you may have a claim for Adverse Possession, or if a claim has been made against your land.

We understand that each application turns on its own unique circumstances and we tailor our advice with this in mind in order to meet your objectives. Whether you are seeking to make an Adverse Possession claim or have received notice of an Adverse Possession claim which will impact your property, we can review your individual circumstances and provide you with advice on the likelihood of success of any claim. We can also assist with drafting and lodging the necessary applications to either make a claim for Adverse Possession, or defend a claim that has been made against your land.

Frequently Asked Questions

It is still possible to make a claim over land that you have not possessed in your own personal right for 15 years or more. In these instances, a Deed of Assignment of Possessory Right can be used to show that possession of the land has been transferred to you by other persons who have possessed the land for a period sufficient to satisfy the 15-year threshold.

Our Property & Development team have extensive experience in drafting and preparing Deeds of Assignment of Possessory Right and can assist you in establishing the ‘chain of possession’ capable of satisfying the 15-year requirement for adverse possession.

The type of application that a person has lodged will usually dictate how the claim is defended. In any event, if someone has lodged a claim against your land, you will receive a notice from Land Use Victoria, the Magistrates Court of Victoria or the claimant’s lawyer.

If you receive a notice setting out that someone is claiming title to your land via possession, it is extremely important to seek urgent legal advice.

If the notice comes from the Office of Land Titles, the claim can be defended via lodging a caveat against the certificate of title for the claimed land. This then notifies the Land Use Victoria that you intend on defending the claim. It is extremely important that you seek URGENT legal advice if you receive a notice in the mail. There is usually only a 30 day timeframe in which a caveat can be lodged before an order is made. If a caveat is not lodged within the 30-day time frame, you will have to apply to the County Court of Victoria to defend the claim.

If you receive a notice from the Magistrates Court, you will need the assistance of a lawyer to file your defence or counter claim. There are various time constraints surrounding the filing of defences and counter claims and therefore it is recommended that you seek urgent legal advice if you receive a notice from the Magistrates Court of Victoria.

It is not possible to claim adverse possession over any of the following types of land:

  • Roads or footpaths
  • Railways or land owned by a rail corporation
  • Any land owned by a water authority
  • Common property owned by an Owners Corporation (formerly known as a body corporate)
  • Crown Land
  • Land owned by a local council
  • Parks and reserves
  • State forests or National parks

Obtaining legal advice is crucial if you intend on lodging or defending a claim for adverse possession. There are a range of different applications available, depending on the circumstances of the intended claim. It is therefore important that you seek the advice of a lawyer to ensure that the correct application is lodged.

In addition to the above, extensive legal documentation is required to establish evidence of possession. In most instances, a series of statutory declarations are required from the applicant and at least two (2) dis-interested witnesses.  Based on the complexity of evidence required to prove adverse possession, it is important to seek legal assistance to ensure that your application reaches the evidentiary burden required for a successful claim.

In the instance that you intend on defending a claim, it is important that you seek the advice of a lawyer to ensure that a caveat is lodged in time and/or a defence filed in the relevant court.

In some instances, it may be necessary to go to Court. If you have lodged a claim and it becomes contested at the County Court of Victoria, you shall be required to attend Court and give evidence in support of your claim. Alternatively, if you choose to defend a claim via seeking an order of the County Court, you will need to attend Court to give evidence on why adverse possession should not be allowed.

In some instances, adverse possession can be claimed in conjunction with a fencing dispute at the Magistrates Court of Victoria. Similar to the above, you may be required to attend Court in this instance to give evidence either in support of or against the claim for adverse possession.

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Lucille HampshireLucille Hampshire
05:23 24 Mar 23
Selling my home and purchasing a new home.I felt so very lucky to be placed in the hands of Melaine, Naomi and their team. Throughout the whole process nothing was too much to ask and everything was dealt with the utmost professionalism and caring, the journey from start to finish was flawless. I would highly recommend Coulter Legal to anyone looking to sell or purchase a home.
maxine flakemoremaxine flakemore
23:24 05 Jan 23
Being my first experience of the type of legal services supplied, I was quite apprehensive but felt really supported and attended to, when I spoke to Sebastian by phone. The process I was to go through was explained really well and his follow up support has been really assuring. Many thanks and I would highly recommend you services. I know who to call if I need legal representation in the future.
Emma HoyEmma Hoy
09:56 06 Dec 22
I could not more highly recommend the team of lawyers I was fortunate enough to have assisting me with a significant legal matter. I had the pleasure of working with Alastair and Sarah, who were both highly knowledgable, respectful and professional lawyers throughout the legal process. During a highly stressful and anxious time, they were able to reassure me, and guide me through the necessary steps required to handle the matter. Thank you!
Liz Lockwood-SaundersLiz Lockwood-Saunders
22:30 01 Dec 22
Our needs changed a few times over the course of going to court, but every time we were walked through the process, supported and celebrated when we achieved what was necessary. Satbir and Alastair are wonderful! We have our freedom back!
Catherine SomersetCatherine Somerset
23:50 30 Nov 22
I'm a boomer so had to get my daughter to show me how to do a google review - but I had to give credit where credit is due! My husband and I just completed our Wills with CL lawyer, Tristan Burke. He was brilliant and delightful. An excellent communicator - listened to our intentions and complexities and translated them into the legal document, and willing and able to communicate back to us, in terms we could understand, the purpose and effect of each clause. Tristan has left us feeling confident, clear and relieved that all is sorted. The process was streamlined and professional. Get on to Coulter Legal for your Wills and Estates planning now - cause you never know when that bus might come!
Ross HarrisonRoss Harrison
22:42 13 Jul 22
Laura from Coulter Legal was extremally helpful and able to advise various options and details for our Wills. We also set up Financial & Personal Powers of Attorney and Medical Treatment Decision Maker documents.
Daniel TomkinDaniel Tomkin
03:06 13 May 22
Used this service for a family legal matter. The advice and help I got was excellent. I could not recommend any higher.
Christiane EdwardsChristiane Edwards
03:57 05 May 22
I have used Satbir to settle a parenting and property matter as part of a divorce. He impresses with professionalism and always pushes for the best outcome. Can highly recommend him!
eviie luongeviie luong
05:12 07 Mar 22
Alastair Noakes and Sarah Guthrie were very supportive during my divorce proceedings all the way through. Their advice always factored in my best interest as well as my children.Thank you for seeing my case through successfully.
Luke ColeLuke Cole
01:15 02 Mar 22
Very helpful rang them from Qld gave me the info I needed over the phone, in a time of need!
Lucille HampshireLucille Hampshire
05:23 24 Mar 23
Selling my home and purchasing a new home.I felt so very lucky to be placed in the hands of Melaine, Naomi and their team. Throughout the whole process nothing was too much to ask and everything was dealt with the utmost professionalism and caring, the journey from start to finish was flawless. I would highly recommend Coulter Legal to anyone looking to sell or purchase a home.
maxine flakemoremaxine flakemore
23:24 05 Jan 23
Being my first experience of the type of legal services supplied, I was quite apprehensive but felt really supported and attended to, when I spoke to Sebastian by phone. The process I was to go through was explained really well and his follow up support has been really assuring. Many thanks and I would highly recommend you services. I know who to call if I need legal representation in the future.
Emma HoyEmma Hoy
09:56 06 Dec 22
I could not more highly recommend the team of lawyers I was fortunate enough to have assisting me with a significant legal matter. I had the pleasure of working with Alastair and Sarah, who were both highly knowledgable, respectful and professional lawyers throughout the legal process. During a highly stressful and anxious time, they were able to reassure me, and guide me through the necessary steps required to handle the matter. Thank you!
Liz Lockwood-SaundersLiz Lockwood-Saunders
22:30 01 Dec 22
Our needs changed a few times over the course of going to court, but every time we were walked through the process, supported and celebrated when we achieved what was necessary. Satbir and Alastair are wonderful! We have our freedom back!
Catherine SomersetCatherine Somerset
23:50 30 Nov 22
I'm a boomer so had to get my daughter to show me how to do a google review - but I had to give credit where credit is due! My husband and I just completed our Wills with CL lawyer, Tristan Burke. He was brilliant and delightful. An excellent communicator - listened to our intentions and complexities and translated them into the legal document, and willing and able to communicate back to us, in terms we could understand, the purpose and effect of each clause. Tristan has left us feeling confident, clear and relieved that all is sorted. The process was streamlined and professional. Get on to Coulter Legal for your Wills and Estates planning now - cause you never know when that bus might come!
Ross HarrisonRoss Harrison
22:42 13 Jul 22
Laura from Coulter Legal was extremally helpful and able to advise various options and details for our Wills. We also set up Financial & Personal Powers of Attorney and Medical Treatment Decision Maker documents.
Daniel TomkinDaniel Tomkin
03:06 13 May 22
Used this service for a family legal matter. The advice and help I got was excellent. I could not recommend any higher.
Christiane EdwardsChristiane Edwards
03:57 05 May 22
I have used Satbir to settle a parenting and property matter as part of a divorce. He impresses with professionalism and always pushes for the best outcome. Can highly recommend him!
eviie luongeviie luong
05:12 07 Mar 22
Alastair Noakes and Sarah Guthrie were very supportive during my divorce proceedings all the way through. Their advice always factored in my best interest as well as my children.Thank you for seeing my case through successfully.
Luke ColeLuke Cole
01:15 02 Mar 22
Very helpful rang them from Qld gave me the info I needed over the phone, in a time of need!
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If your require any further information please contact our Property & Development team.