Adverse Possession (WA)

Adverse possession is the possession of land contrary to the interests of the legal owner. Where adverse possession is established, the rights of the legal owner of the land are extinguished and the adverse possessor becomes the legal owner. This article deals with adverse possession in Western Australia.

When does adverse possession occur?

Common examples of where adverse possession occurs include:

1. Where a dividing fence has been built between two properties and it has not been built on the legal boundary resulting in one party occupying and using some of the land of the other;
2. Where two neighbouring properties do not have a dividing fence or boundary marker leading to one neighbour occupying and using the other’s land, such as using a portion of the land as a driveway, building a garden, or livestock grazing in the area.

Adverse possession in WA

In Western Australia, where a person who is not the legal owner (the person whose name is on the Certificate of Title for the property) occupies land owned by someone else and does so for a period of 12 years or more, and against the wishes of the legal owner, that person is said to be adversely possessing the land.

The adverse possessor is eligible to make an application to have that land transferred into their legal name.

Criteria for adverse possession

The person claiming adverse possession must demonstrate:

Factual Possession

For factual possession to be proven, the person claiming adverse possession must prove that they have taken physical control of the property and their control is open, peaceful and without consent.

Open and Peaceful

‘Open’ means the adverse possessor has open and notorious possession of the land.  An outsider looking in would assume that the adverse possessor is the legal owner of the land.

‘Peaceful’ means the possession occurred without violence (such as threats or a physical violence).

Without Consent

This means the adverse possessor is possessing the land without the legal owner’s consent.

Intention to Possess: Animus Possidendi

The person claiming adverse possession must also prove that they had the intention to possess the land to the exclusion of the legal owner and the rest of the world.

Time

The person claiming adverse possession must have continuous and uninterrupted possession of the land, and this must be for a period of at least 12 years.

Application for adverse possession

The person claiming adverse possession may make an application to the Registrar of Titles (Landgate) or by commencing proceedings in the Supreme Court of WA.

For most, an application to Landgate is the preferred option.  This is because it is an administrative process that is easier and more affordable than court litigation and in most cases more time-efficient.

Application to landgate

In Landgate’s Land Title Registration Practice Manual they set out their process.

The application to Landgate needs to be prepared by the person claiming adverse possession and must include:

1. Landgate’s Application Form;
2. Proof of possessory title;
3. A statutory declaration from the adverse possessor setting out their claim and evidence;
4. Statutory declarations from at least two disinterested persons; and
5. The necessary documents prepared by a Licensed Land Surveyor – such as a survey sketch or re-establishment survey.

After the adverse possessor lodges their application, Landgate will follow the below process:

1. a preliminary review of the chronology of the Deeds;
2. assessment by Landgate’s In-house Surveyors;
3. referral to the Commissioner of Titles and Landgate’s In-house legal team for legal review;
4. if required, requisitions for defects and/or deficiencies in the application and supporting documentation – this generally occurs where there is a need for more information or information needs to be clarified;
5. if the application is granted by the Commissioner, a statutory advertising period applies of usually 21 days;
6. time may be extended if any caveats are lodged during the statutory advertising period and any objections are lodged in the Supreme Court of WA.

Where the application to Landgate is objected to, the matter is referred to the Supreme Court of WA.

Application to the Supreme Court of WA

If due to the circumstances of the case an application to Landgate is not a viable option or the application to Landgate is objected to, then the person claiming adverse possession needs to commence proceedings in the Supreme Court of WA for a legal declaration that they adversely possess the land.

If the Supreme Court of WA makes a legal declaration (by consent or after hearing evidence at trial), then a simplified application to Landgate needs to be lodged.  This is because the Supreme Court of WA grant the legal declaration but Landgate make the necessary changes to the title documents and legal boundaries.

Before you apply to Landgate or commence proceedings in the Supreme Court of WA for adverse possession you should obtain independent legal advice.  Adverse possession is a technical area of law and any application or claim requires substantial evidence.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.