01 November 2018

When someone else’s property becomes your own – the laws around adverse possession

“A Sydney property developer has won the ownership rights to a home in the inner west after finding it empty and renting it out for two decades” … an extreme situation indeed here in this article today.
The more common situation is where boundary fences are incorrectly placed and the error is not picked up for many years.

Back to this story and the legal view.
Obtaining title to land by adverse possession has been described as an extinctive process. This is a reference to the effect which adverse possession of a registered owner’s land will have on the owner’s title if possession by another continues uninterrupted for 12 years, with the uninterrupted elapse of the 12-year limitation period automatically extinguishing the registered owner’s title.

As adverse possession is one of the limited exceptions to indefeasibility of title, it is important when purchasing land to ensure that none of the land to be purchased is not affected by a possessory interest adverse to the vendor. We often see this problem arise in situations where boundary fences have been misaligned for many years, with sometimes vast areas of land occupied by neighbouring owners.

As the law does not require any formal or informal conveyance or assignment of possessory rights, it is possible for possessors to rely on the occupation of their predecessors in title to accrue the relevant 12 years of possession.

If you own a property or are buying a property, make sure that you know where the boundaries of the property are. If a fence is in the wrong spot and has been for in excess of 12 years in WA, then you or your neighbour may be entitled to have the boundaries of your property (and theirs) changed to where the fence is located. If the error has not been identified for more than 30 years then an even stronger claim to adverse ownership exists in WA. It can be important when buying a house in an older established suburb to have a surveyor check that boundary fences are in the correct position or you may end up buying a smaller/bigger block than what the title states.

There is a prescribed process which must be followed in you wish to make a claim for adverse possession in WA, and we’re always happy to talk you through next steps and give you the advice you need.

Andrew Bower began his legal career as a law clerk in 2008, whilst studying a Bachelor of Laws and a Bachelor of Commerce majoring in finance at Murdoch University.