Adverse Possession
and Section 99 Applications
ISV Seminar 24th May 2013
Disclaimer
This publication may be of assistance to you but the State of Victoria and its employees do not guarantee that the publication is
without flaw of any kind or is wholly appropriate for your particular purposes and therefore disclaims all liability for any error, loss
or other consequence which may arise from you relying on any information in this publication.
Application and Survey Branch
Land Victoria
Overview
•
Adverse Possession
–
–
–
–
–
–
–
–
General Characteristics
Limitations of Actions Act 1958
Survey Information
Encumbrances
Evidence
Lodgement
Notices
Resulting Parcels
Application and Survey Branch
Land Victoria
Overview
•
Section 99 Applications
– General Characteristics
– Overlap Diagrams
Application and Survey Branch
Land Victoria
Adverse Possession
General Characteristics
• Minimum 15 years possession
• 30 years proof of “non-user” is required for title to issue
free of encumbrances
• Current search of affected folio is critical
Adverse Possession
General Characteristics
• No limit on the size of the land claimed
• Claims against part(s) or whole titles are acceptable
• Application does not usually amend applicant’s title(s),
but this may be possible
Adverse Possession
Limitations of Actions Act 1958
• Period of Adverse Possession must be at least 15 years
(Sec. 8)
• Protects certain land from Adverse Possession
Crown Land (Sec. 7)
PTC or Victorian Rail Track (Sec. 7A)
Land in the name of a Water Authority (Sec. 7AB)
Common Property by member(s) of Owner’s Corporation (Sec. 7)
Adverse Possession
Limitations of Actions Act 1958
• Protects certain land from Adverse Possession
Council land (Sec. 7B)
– Where a Council is the Registered Proprietor of affected land
– Note many “laneways” are still in name of original subdivider - councils
acquiring
VicRoads
– No specific Statutory protection, but recent court case confirmed Crown
status
Adverse Possession
Survey Information
• Plan of Survey
– signed and dated
– subject land uniquely identified
– full enclosure shown
• Surveyor’s Report
– signed and dated
– description of re-establishment of applicant’s and subject land(s)
Adverse Possession
Survey Information
• Abstract of Field Records
–
–
–
–
signed and dated
subject land defined
full enclosure with applicant’s land shown
survey not older than 2 years, showing current occupation
• Examiner’s Report
–
–
–
–
–
re-establishment (applicant’s and subject land)
encumbrances
list affected folios (as to fee and appurtenancies)
enclosure / access
no discussion of evidence
Adverse Possession
Survey Information (Plan of Survey)
subject land
uniquely
identified
Full enclosure
with applicant’s
land
signed and
dated by
Surveyor
Adverse Possession
Survey Information (Abstract of Field Records)
subject land
uniquely
identified
full enclosure
with applicant’s
land
Adverse Possession
Survey Information (Surveyor’s Report)
• Purpose of Survey
• Encumbrances
• Occupation
Adverse Possession
Survey Information (Surveyor’s Report)
• Purpose of Survey
• Encumbrances
Adverse Possession
Survey Information (Surveyor’s Report)
• Occupation
Adverse Possession
Survey Information (Complex Plan of Survey)
Adverse Possession
Survey Information (Complex Plan of Survey)
how we got to
this – LP’s of
different origins
Adverse Possession
Survey Information (Complex Plan of Survey)
survey must be
extensive enough
to fix parcels
identifies all
different parcels
within occupation
Adverse Possession
Non Survey
• 20%-30% of Adverse Possession claims are lodged on a NonSurvey basis
• Non-Survey requirements
Claimed land must be surrounded by:
– the applicant’s land
– Government Roads
– Crown Land
– or any combination of the above
• Waive Survey (WS)
– requests must be for whole parcels and are based on aerial photos
– usually lodged by solicitor’s
Adverse Possession
Encumbrances
• If application is made for an unencumbered title:
– the applicant must prove existing encumbrances extinguished by the
possession
– where the encumbrance is an easement (eg. rights of carriageway,
drainage etc.), proof of non use for at least thirty years is required (Sec.
73(3) & 73A TLA)
– LGA rights not removed by Sec. 60
– covenants can be removed (TLA amended 2009)
Adverse Possession
Encumbrances
• Where the encumbrance is a Road:
– evidence of 30 years of non-use is required
– proof of Road Management Act status required – council response
critical
– generally no abuttal shown to balance of road
Adverse Possession
Encumbrances
• Where the encumbrance is a Reserve:
– Carefully research if the reserve was created for a specific purpose, and
if there are any underlying easements
– Reserves on Subdivision Act plans
• Council are often the Registered Proprietor, no adverse possession
– Reserves on TLA plans
• Not for a purpose, remove if possession proven
• Drainage / Sewerage – prove not used for that purposes, or provide
consent of authority
Adverse Possession
Examiner’s Report
• description of subject land
• alignments
• applicant’s land
• subject land
• affected titles
• enclosure and access
• encumbrances
• documents to be amended
Adverse Possession
Examiner’s Report
• description of subject land
• alignments
Adverse Possession
Examiner’s Report
• applicant’s land
• subject land
Adverse Possession
Examiner’s Report
• affected titles
• enclosure and access
Adverse Possession
Examiner’s Report
• encumbrances
• documents to be amended
Adverse Possession
Evidence Example
Statutory Declaration
I, JOAN APPLICANT of 14 Main Street Country Town do solemnly and
sincerely declare: 1. That I am the registered Proprietor of the land contained in
Certificate of Title Vol.5463 Fol.999, known as 14 Main Street
Country Town.
2. That I purchased the said property and was registered as proprietor
in June 1980, and moved into the property immediately thereafter and
have resided there ever since.
3. That when I purchased the said property, the subject land, now
produced and exhibited to me marked ‘A’ on Plan of Survey by Joe
Bloggs dated 12/3/2006, was already fenced in with the land in my
title. It was apparently included with the land several years earlier by
the previous owner.
4. That in the time since my occupation I have maintained exclusive,
uninterrupted and continuous possession of the subject land.
5. That during the time of my occupation I have used the subject land
as a garden and lawn area and for general enjoyment as part of my
back yard. The subject land has been fully enclosed by fencing along
with my property. The only access to the subject land is through my
house or by a gate along side the house.
6. That during the period of possession, improvements to the subject
land have been made by me in regards to the planting of trees, plants
and the general maintenance of the garden and lawn area.
7. The Subject land is located within the Warrumang Shire Council
whose address is 16 High Street Country Town.
8. That I have paid the rates on my property for the duration of my
possession, and it is unlikely the subject land is a separately rated
parcel.
• occupier of the land
• identification of the land
• survey plan to be an exhibit
• circumstances of possession
• establishes exclusive
possession
• use, enclosure and access
to the land
• improvements
• identify municipality
• who paid the rates
Adverse Possession
Statutory Declaration
Evidence Example
I, JOAN APPLICANT of 14 Main Street Country Town do solemnly and
Statutory Declaration
declare:
•sincerely
occupier
of-the land
I, JOAN
of registered
14 Main Street
Country
do solemnly
1. APPLICANT
That I am the
Proprietor
of Town
the land
containedand
in
sincerely
declare:
Certificate of Title Vol.5463 Fol.999, known as 14 Main Street
Country Town.
1. That I am the registered Proprietor of the land contained in
Certificate
of Title the
Vol.5463
Fol.999,
as 14 as
Main
Street
2. That I purchased
said property
and known
was registered
proprietor
Country
Town.and moved into the property immediately thereafter and
in June 1980,
•
have resided there ever since.
2. That I purchased the said property and was registered as proprietor
in
moved into
property
immediately
thereafter
and
3. June
That 1980,
when and
I purchased
thethesaid
property,
the subject
land, now
identification
of the
land
survey plan to be an exhibit
have
resided
ever since.
produced
andthere
exhibited
to me marked ‘A’ on Plan of Survey by Joe
Bloggs dated 12/3/2006, was already fenced in with the land in my
3.
That
when
I purchased
the said
the subject
title.
It was
apparently
included
with property,
the land several
years land,
earliernow
by
produced
and
exhibited
to
me
marked
‘A’
on
Plan
of
Survey
by
Joe
the previous owner.
Bloggs dated 12/3/2006, was already fenced in with the land in my
title.
It was
apparently
included
with the Iland
years exclusive,
earlier by
4. That
in the
time since
my occupation
haveseveral
maintained
the
previous owner.
uninterrupted
and continuous possession of the subject land.
4.
That during
in the time
sinceofmy
exclusive,
5. That
the time
myoccupation
occupationIIhave
havemaintained
used the subject
land
uninterrupted
and
continuous
possession
of
the
subject
land.
as a garden and lawn area and for general enjoyment as part of my
back yard. The subject land has been fully enclosed by fencing along
5. That during the time of my occupation I have used the subject land
I, JOAN APPLICANT of 14 Main Street Country Town do solemnly and
Statutory Declaration
sincerely declare: -
Adverse Possession
I, JOAN
of registered
14 Main Street
Country
do solemnly
1. APPLICANT
That I am the
Proprietor
of Town
the land
containedand
in
sincerely
declare:
Certificate of Title Vol.5463 Fol.999, known as 14 Main Street
Country Town.
1. That I am the registered Proprietor of the land contained in
Certificate
of Title the
Vol.5463
Fol.999,
as 14 as
Main
Street
2. That I purchased
said property
and known
was registered
proprietor
Country
Town.and moved into the property immediately thereafter and
in June 1980,
Evidence Example
• circumstances
have resided there of
everpossession
since.
2. That I purchased the said property and was registered as proprietor
in
moved into
property
immediately
thereafter
and
3. June
That 1980,
when and
I purchased
thethesaid
property,
the subject
land, now
have
resided
ever since.
produced
andthere
exhibited
to me marked ‘A’ on Plan of Survey by Joe
•
Bloggs dated 12/3/2006, was already fenced in with the land in my
3.
That
when
I purchased
the said
the subject
title.
It was
apparently
included
with property,
the land several
yearsland,
earliernow
by
produced
and
exhibited
to
me
marked
‘A’
on
Plan
of
Survey
by
Joe
the previous owner.
Bloggs dated 12/3/2006, was already fenced in with the land in my
title.
It was
apparently
included
with the Iland
years exclusive,
earlier by
4. That
in the
time since
my occupation
haveseveral
maintained
the
previous owner.
establishes
exclusive
uninterrupted
and continuouspossession
possession of the subject land.
4.
That during
in the time
sinceofmy
exclusive,
5. That
the time
myoccupation
occupationI Ihave
havemaintained
used the subject
land
uninterrupted
and
continuous
possession
of
the
subject
land.
as a garden and lawn area and for general enjoyment as part of my
back yard. The subject land has been fully enclosed by fencing along
5.
That
the time
myaccess
occupation
have used
with
myduring
property.
The of
only
to theIsubject
landthe
is subject
throughland
my
as
a
garden
and
lawn
area
and
for
general
enjoyment
as
part
of
my
house or by a gate along side the house.
back yard. The subject land has been fully enclosed by fencing along
with
myduring
property.
only
to theimprovements
subject land istothrough
my
6. That
the The
period
of access
possession,
the subject
house
or bybeen
a gate
along
theregards
house. to the planting of trees, plants
land have
made
by side
me in
and the general maintenance of the garden and lawn area.
6. That during the period of possession, improvements to the subject
land
have
been made
me in regards
to the
planting of
trees,Council
plants
7. The
Subject
land isbylocated
within the
Warrumang
Shire
have resided there ever since.
2. That I purchased the said property and was registered as proprietor
in
moved into
property
immediately
thereafter
and
3. June
That 1980,
when and
I purchased
thethesaid
property,
the subject
land, now
have
resided
ever since.
produced
andthere
exhibited
to me marked ‘A’ on Plan of Survey by Joe
Adverse
Possession
Bloggs dated 12/3/2006,
was already fenced in with the land in my
3. That when I purchased the said property, the subject land, now
title. It was apparently included with the land several years earlier by
produced
andowner.
exhibited to me marked ‘A’ on Plan of Survey by Joe
the previous
Bloggs dated 12/3/2006, was already fenced in with the land in my
title.
It was
apparently
included
with the Iland
years exclusive,
earlier by
4. That
in the
time since
my occupation
haveseveral
maintained
the
previous
owner.
uninterrupted
and continuous
possession
of the
subject land.
use,
enclosure
and access
to the
land
Evidence Example
•
4.
That during
in the time
sinceofmy
exclusive,
5. That
the time
myoccupation
occupationI Ihave
havemaintained
used the subject
land
uninterrupted
and
continuous
possession
of
the
subject
land.
as a garden and lawn area and for general enjoyment as part of my
•
back yard. The subject land has been fully enclosed by fencing along
5.
That
the time
myaccess
occupation
have used
with
myduring
property.
The of
only
to theIsubject
landthe
is subject
throughland
my
as
a
garden
and
lawn
area
and
for
general
enjoyment
as
part
of
my
house or by a gate along side the house.
back yard. The subject land has been fully enclosed by fencing along
with
myduring
property.
only
to theimprovements
subject land istothrough
my
6. That
the The
period
of access
possession,
the subject
house
or bybeen
a gate
along
theregards
house. to the planting of trees, plants
improvements
land have
made
by side
me in
and the general maintenance of the garden and lawn area.
6. That during the period of possession, improvements to the subject
land
have
been made
me in regards
to the
planting of
trees,Council
plants
7. The
Subject
land isbylocated
within the
Warrumang
Shire
and
theaddress
generalismaintenance
of the
gardenTown.
and lawn area.
whose
16 High Street
Country
7.
The Subject
land the
is located
the Warrumang
Shire Council
8. That
I have paid
rates onwithin
my property
for the duration
of my
whose
address
is
16
High
Street
Country
Town.
possession, and it is unlikely the subject land is a separately rated
parcel.
8. That I have paid the rates on my property for the duration of my
possession, and it is unlikely the subject land is a separately rated
parcel.
Bloggs dated 12/3/2006, was already fenced in with the land in my
title.
It was
apparently
with the land
several
earlierland
by
5.
That
during
the time included
of my occupation
I have
used years
the subject
theaprevious
owner.
as
garden and
lawn area and for general enjoyment as part of my
back yard. The subject land has been fully enclosed by fencing along
4. That
the time The
sinceonly
my access
occupation
maintained
exclusive,
with
myinproperty.
to theI have
subject
land is through
my
uninterrupted
and continuous
possession
house
or by a gate
along side the
house. of the subject land.
Adverse Possession
Evidence
Example
5. That during
of of
mypossession,
occupation improvements
I have used thetosubject
land
6.
during the
the time
period
the subject
•
•
as a garden
andmade
lawnby
area
for general
as trees,
part of
my
land
have been
meand
in regards
to theenjoyment
planting of
plants
backthe
yard.
The maintenance
subject land has
been
fullyand
enclosed
by fencing along
and
general
of the
garden
lawn area.
identify
Municipality
with my property. The only access to the subject land is through my
house
by a gate
along
side thewithin
house.the Warrumang Shire Council
7.
TheorSubject
land
is located
whose address is 16 High Street Country Town.
6. That during the period of possession, improvements to the subject
land
have
been paid
madethe
by rates
me inonregards
to the planting
of trees, of
plants
8.
That
I have
my property
for the duration
my
and the general
of the garden
possession,
andmaintenance
it is unlikely
subjectand
landlawn
is aarea.
separately rated
parcel.
7. The Subject land is located within the Warrumang Shire Council
whose
address
16 High Street Country Town.
who
paid
theisrates
8. That I have paid the rates on my property for the duration of my
possession, and it is unlikely the subject land is a separately rated
parcel.
Adverse Possession
Lodgement
•
•
•
•
•
no duplicate title required *
application critical (Form 24)
evidence of 15 years possession must be lodged
pre-lodgement check
SPEAR – can lodge survey documents
* unless requesting “consolidation” Sec. 62(2)(b)(ii) TLA
Adverse Possession
Lodgement Checklist
Lodgement Checklist
(page 1)
Adverse Possession
Lodgement Checklist
Lodgement Checklist (page 2)
Lodging Party to use as a
checklist - do we have all
relevant information?
Available through
www.land.vic.gov.au
Adverse Possession
Application (Form 24)
Eg: The land marked ‘A’• Request
on plan for
of vesting
surveyorder
by J.
states either
“free
of of the
Bloggs L.S. dated 27/03/2006
being
part
encumbrances”
or “subject
land contained in Certificate
of Title Vol.1234
to existing encumbrance/s”
Fol.456
• Land description
includes title reference
and identifies subject
land by reference to Plan
of Survey, LS and date of
plan
Adverse Possession
Notices
• Notices to be sent to the following affected parties:
– Registered Proprietors of affected titles
– any parties with an interest in affected titles
– Registered Proprietors of lands whose appurtenant rights are to be
extinguished
• Notices to Lodging party:
– Formal Requisitions listings requirements for applicant
• advertisement for local paper
• copies of Statutory Notice / Plan for display on subject land
• bankruptcy notification
Adverse Possession
Statutory Notice
• Details of applicant and
the subject Land
• Steps the affected party
can take
• Diagram showing
affected land – often uses
the Plan of Survey
Adverse Possession
Resulting Parcels
• Sec. 62(2)(b)(ii) amended 2009 can now “consolidate”
vested land with applicant’s land “at the Registrar’s
discretion…”
• Depends of circumstances
–
–
–
–
–
preferable for strips and slivers
mortgages may prevent
status (Road, Reserve) may prevent
parcelation (Sale of Land Act Sec. 8A) may prevent
at least try to have both parcels on the same Title Plan
Adverse Possession
Resulting Parcels
• Consolidate vested land with applicants land:
– must lodge CofT
– may therefore be able to amend applicant’s land
– may need further direction if multiple applicant’s parcels
Section 99 Applications
General Characteristics
• LV Legal – Must amend all boundaries to accord with
“bona fide” occupation
• Resulting parcelation same as before application,
internal boundaries need to be considered
• Consideration of affect is critical
– extent of survey
– fitting together survey of different origins
– may need Overlap Diagram
Section 99 Applications
Overlap Diagram
Must consider affect on
all parcels, especially
where they don’t fit
neatly together
Section 99 Applications
Overlap Diagram
Diagrams do not need to be complicated – they need to
demonstrate that all affects have been considered
Questions?
Our email address is: aps.branch@dse.vic.gov.au
Published by the Victorian Government
Department of Environment and Primary Industries, May 2013
© The State of Victoria Department of Environment and Primary Industries 2013
This publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968.
Authorised by the Victorian Government, 570 Bourke Street, Melbourne.
For more information contact the DSE Customer Service Centre 136 186