Lots of properties around Melbourne and Victoria have fences and buildings that don’t lie on the title boundaries, and the owners may not even be aware!
You might find out about this if you or a neighbour has a survey completed for a renovation or extension, or if you’re purchasing a property and the agent or vendor has let you know that part of the backyard isn’t included on the title of the property being sold.
If your fences don’t match your title boundaries, you might have an adverse possession claim or be at risk of one. Given land values in Melbourne, it is worth getting expert advice on your rights. Adverse possession is the process by which an occupier of land can become the legal owner of land, extinguishing the rights of the original owner.
Get legal advice about your boundary issue
It is important to get legal advice on whether you have a claim, or are at risk of a claim being brought against land that you own. You should get this advice before you discuss the matter with other parties, such as your neighbours or the council, as this can also impact a successful claim - this is known as ‘acknowledging title’.
If you have discovered a discrepancy between the boundaries of your title plan and the placement of fences and building exteriors that form the physical boundary, a property lawyer can talk you through whether you might have a claim, and other options for resolving the property boundary issues.
Has your surveyor alerted you to your fences not matching the title boundaries? Want to discuss your boundary issue? Book a confidential obligation-free 10 minute chat with our property law team here and we can let you know if it is worth pursuing.
Adverse possession & boundary dispute services
Review & Letter of Advice - $550 + cost of searches ($50-$300)
Review of any survey documents, completing preliminary searches and preparing a letter of advice on whether an adverse possession claims exists - either for land you possess, or land of yours that a neighbour is possessing
Letter to your neighbour - $990 + cost of searches
As above, plus a letter to your neighbour asserting your rights
Transfer of Possessory Rights - $990 + cost of searches (approx. $100)
Drafting the required statutory declarations and Deed of Transfer of Possessory Rights if you are buying or selling a property where land is possessed so that you or another party can pursue an adverse possession claim in the future.
Adverse Possession Claim - from $4,400 + disbursements (approx. $800-1,000)
Draft and submit documents in support of your adverse possession claim, including any Deed of Transfer of Possessory Rights and statutory declarations as required.
Boundary Re-alignment, Boundary Rectification or Not-In-Common-Ownership Subdivision
Adverse possession is not the only method to vary title boundaries to match the fenced occupation of the land. Nest Legal can assist with these types of applications if they are a better fit for your circumstances.
Book a free chat now, or continue below for more information!
Buying or selling property where you know or suspect the fences are wrong
Are you thinking about selling or purchasing a property where not all the land is included on title, or have you recently purchased a property like this? Book in a free chat to talk about how Nest Legal can help review documents drafted by your previous conveyancer or to prepare for a future adverse possession claim.
Making an adverse possession claim
In Victoria, the minimum requirements for an adverse possession claim are that you have occupied or possessed the land for a continuous period of at least 15 years, maintained the land in that time, and excluded other people from using the land, often by way of fences or gates or controlling the means of access to the land.
In some instances, such as where an easement is to be extinguished, a period of 30 years possession is required.
Crown land, and land owned by a council, water authority or VicTrack cannot be the subject of an adverse possession claim. This land can often be purchased from the council, or leased from the proprietor.
If you are purchasing from another person (or have recently purchased), you can arrange for these ‘possessory rights’ to be transferred as part of the sale so that you can lodge a claim in the future. This can also be prepared after the fact as well if the previous owners are happy to assist.
Want to know if you have a potential adverse possession claim or how you can buy or lease land that you are occupying? Nest Legal can complete preliminary searches and a letter of advice setting out your options to resolve your boundary issue - get started with a free chat.
Evidence required for an adverse possession claim
The Victorian Land Registry has strict requirements for the evidence that must be supplied. This evidence usually incorporates statutory declarations from several parties, aerial photographs, plans of survey prepared by a surveyor and Land Register searches of the properties surrounding the possessed land.
The supporting evidence should be drafted and collated by a lawyer that regularly practises in this area to avoid requisitions from the Land Registry and ensure that your claim is as strong as possible if it is challenged in court.
Each of the requirements for an adverse possession claim needs to be addressed in the application, and a failure to include the required information can result in a claim being unsuccessful or additional supporting evidence being requested.
What to do if your neighbour’s fences or buildings are on your land
If you find out that a neighbour is encroaching on your land, it’s important to get legal advice on whether there is an adverse possession claim. Nest Legal can complete searches of your property and your neighbours property, as well as requesting aerial photographs and draft a letter of advice setting out the possible ways of resolving the matter.
If you are served with a notice of an adverse possession claim, you have 30 days from the date that Land Victoria gives you notice to lodge a caveat.
Whether you have been served with a notice or merely threatened by your neighbour (or if you know the fences are wrong and the neighbours are about to go on the market), you should seek legal advice before approaching your neighbour or responding to the notice.
Resolving boundary discrepancies without adverse possession
Adverse possession is only one of the many ways in which a boundary discrepancy can be corrected so that the title plan and fences or building boundaries match up.
Rather than resorting to adverse possession, the parties can come to an agreement that can be mutually beneficial to everyone. This agreement can include terms around not objecting to construction or development, or deciding on a new boundary that lies between the title boundary and the placement of the fences.
Title boundaries can also be altered or amended by a NICO (Not-in-Common-Ownership) Plan of Subdivision or a Boundary Realignment Application, which can be cheaper and quicker than an adverse possession application.
Want to discuss what options are available to amend a title boundary? Book in a free chat to talk about how Nest Legal can help
Conclusion
Land in Melbourne is only going to get more precious and valuable and it is important to protect your rights - an extra strip of land 30cm wide could make the difference between the council approving planning permits for a development or renovation.
This area of law is technical and sometimes confusing, and it is certainly worth your while getting proper advice by a lawyer who practices in this area. Nest Legal can do some preliminary searches and ascertain the history of ownership for your property and the surrounding parcels of land, and you might be pleasantly surprised!