Understanding Adverse Possession in Victoria
Adverse possession is one of the oldest and most misunderstood property rights in Victoria. It allows a person to claim ownership of land — even if it legally belongs to someone else — provided they’ve occupied it for long enough, without consent.
As explained by David Dawn, Licensed Conveyancer at Victorian Property Settlements, adverse possession is rarely straightforward. It’s a legal doctrine with strict timeframes, rules, and evidentiary standards — and when it appears in a property transaction, it needs to be handled with care.
What is Adverse Possession?
Adverse possession occurs when a person occupies land they don’t legally own, and after 15 years of continuous, exclusive occupation, they apply to be recognised as the owner.
It is governed by the Limitation of Actions Act 1958 (Vic) and supported by procedures set out by Land Use Victoria.
The key legal test is whether the person has:
Occupied the land exclusively
Without the consent of the legal owner
For a continuous period of at least 15 years
And intended to possess it (not just accidentally used it)
If successful, the person is registered as the new owner on title — and the original owner's rights are extinguished.
Where do you see Adverse Possession issues?
Adverse possession often comes up when:
A boundary fence encroaches onto a neighbour’s land
A landowner uses a laneway, strip, or sliver of land that isn’t on their title
A building or shed crosses the title boundary
Someone abandons a property and another person occupies and maintains it
Property titles don’t match historical use, particularly in regional areas
This is also relevant when purchasing older homes with long-standing boundary alignments.
Idiosyncrasies of Adverse Possession
The adverse possessor must make an application through Land Use Victoria, usually with a survey, statutory declarations, and legal support
Crown Land is exempt — you can’t claim adverse possession against the State of Victoria
Council land, roads, and reserves are also usually protected
Time resets if the legal owner reasserts control (e.g. by fencing, leasing, or taking legal action)
Even if successful, the transfer of title is not automatic — it requires a formal title application.
How does it differ from other titles?
Unlike Torrens Title, adverse possession is not created by registration — it’s created by long-term use
Unlike Limited Title, the issue isn’t uncertain boundaries — it’s the risk of someone else gaining rights
Unlike Leasehold, the occupier doesn’t have legal permission — the whole point is that they’re there without consent
It can result in title being granted, but only after years of unchallenged occupation and legal process
Benefits of Adverse Possession
✅ Allows for correction of long-standing boundary issues
✅ Helps formalise ownership where land has been abandoned or neglected
✅ Can add value by expanding a title if unused land is fenced and maintained
✅ Helps protect owners from uncertainty when purchasing land with fencing discrepancies
Drawbacks and risks
🚩 Long and costly process — legal fees, surveyor costs, and Land Use Victoria application fees apply
🚩 Heavy evidentiary burden — requires clear proof of 15 years’ exclusive use
🚩 Not available for Crown Land, roads, reserves, or some utilities
🚩 Applications can be contested by the registered owner (if still alive or in business)
🚩 Purchasers need to be cautious — fences don’t always match title boundaries, and what looks like “your land” may not be
Key Takeaway
If you’re dealing with land that doesn’t line up with the title plan — or land that’s been used or fenced without clear ownership — you may need to investigate adverse possession. It’s not a quick fix, but it can protect your interests and legalise occupation.
📞 Need help with Adverse Possession?
We’ve assisted clients across Victoria in applying for adverse possession, correcting boundary discrepancies, and resolving long-running occupation issues. We’ll help you navigate the paperwork and assess whether a claim is viable.