Boundary issues often come to light unexpectedly. A survey for a renovation, a new fence, or preparations for a sale can reveal that the physical boundary doesn’t quite match what’s shown on the title.
In some cases, the discrepancy has existed for decades. That’s where adverse property rights, more commonly known as adverse possession, can become relevant. While the rules can be complex, understanding your position early can help avoid costly disputes and unnecessary stress.
What are adverse property rights?
Adverse property rights arise through a legal doctrine known as adverse possession.
In Victoria, a person may be able to claim ownership of land they do not hold title to if they have occupied and used that land continuously, exclusively and without the owner’s permission for at least 15 years.
The law exists because property boundaries are not always as clear as people assume. Fences are moved, garages are built in the wrong location, and long-standing arrangements between neighbours can continue for generations without anyone checking the title.
We regularly see these issues arise in older suburbs such as Thornbury, Northcote, Preston and Reservoir, where boundary fences may have been accepted as correct for many years before a survey identifies a discrepancy.
Are adverse property rights the same as squatter’s rights?
You may have heard adverse possession described as ‘squatter’s rights’, particularly in news reports or online forums. Generally, the term ‘squatter’s rights’ or ‘the rights of a squatter’ are used to describe a situation where someone occupies land or property that they don’t legally own, and later seeks to claim legal rights over it.
While the terms are sometimes used interchangeably, they can create a misleading impression. Most adverse possession matters in Victoria don’t involve someone occupying an abandoned property. Instead, they often arise from long-standing boundary issues (fences, gardens, driveways or structures).
The law around adverse possession is far more nuanced than the rights of a squatter suggest, and strict legal requirements must be met before a claim can succeed.
Does the 15 year rule mean you have to live there for 15 years?
No. And this is one of the most common misconceptions about adverse possession in Victoria.
While the law generally requires 15 years of continuous possession, you do not necessarily need to occupy the land personally for the entire period.
If a previous owner occupied the same piece of land before you purchased the property, it may be possible to combine their period of possession with your own. This is often referred to as a “chain of title” and the previous owner would need to execute a deed of assignment of possessory rights to do this.
For example, if a fence was built in the wrong location 20 years ago and successive owners have treated the enclosed area as part of their backyard ever since, the current owner may be able to rely on that history when assessing an adverse possession claim.
What evidence is used to prove adverse possession?
There is no single piece of evidence that proves adverse possession. Instead, the question is whether the person has acted as the owner of the land for the required period.
Evidence may include:
- Historical survey plans
- Aerial photographs showing the location of fences over time
- Building plans and permits
- Contractor invoices for fencing or landscaping works
- Statutory declarations from neighbours or previous owners
- Photographs showing how the land has been used and maintained
The stronger the evidence, the easier it becomes to establish a clear history of occupation.
Can you claim adverse possession without building a fence?
Yes, you may be able to claim adverse possession even without a fence. A fence is often the most obvious form of evidence, but it is not essential.
The key question is whether the land has been occupied and controlled in a way that demonstrates ownership.
Depending on the circumstances, this could include:
- Maintaining a garden on the land
- Grazing livestock
- Constructing a shed, garage or other structure
- Installing gates or access controls
- Regularly maintaining and using the area as part of a property
Courts and Land Services Victoria look at the overall picture rather than any single factor.
Can a neighbour take half your block?
Usually not. One of the biggest myths surrounding adverse property rights is that a neighbour can suddenly claim a large portion of your land.
In reality, most adverse possession matters involve relatively small areas where a fence, driveway, garden bed or structure has crossed a title boundary.
Every situation is different. The exact dimensions of the affected land, the history of occupation and the available evidence all need to be carefully considered.
Where a boundary issue is identified, a licensed surveyor will generally be required to establish the precise location of the title boundary and the extent of any encroachment.
If you’re buying, selling or dealing with a boundary discrepancy, obtaining advice through our Conveyancing & Property Law team can help you understand your position before the issue escalates.
How long do you have to use a neighbour’s land before you’re entitled to own it?
As a general rule, adverse possession in Victoria requires at least 15 years of continuous and uninterrupted possession.
However, there are important exceptions. Adverse possession generally cannot be claimed against:
- Crown land
- Land owned by the State of Victoria
- Council-owned land
- Land owned by public authorities
- Common property belonging to an owners corporation
- Land that has been declared a road
The rules can be complex, which is why obtaining legal advice early is important if a boundary issue has been identified.
Adverse possession, easements and boundary agreements: what’s the difference?
These concepts are often confused, but they serve very different purposes.
Adverse possession involves claiming ownership of land and potentially obtaining title to that land.
An easement gives a person the right to use part of another person’s land for a specific purpose, such as access, drainage or services. Ownership does not change.
A boundary agreement is an arrangement between neighbouring owners that formally records and resolves a boundary issue.
In many situations, a negotiated solution may be more practical and cost-effective than pursuing an adverse possession claim.
Do I need to register an adverse possession claim in Victoria?
While possessory rights may arise through long-term occupation, formalising the position is often advisable.
Registration can provide greater certainty when:
- Selling a property
- Applying for finance
- Undertaking a subdivision or development
- Preparing estate planning documents
- Resolving a long-standing neighbour dispute
Formal registration can also help avoid complications during a future sale, particularly when preparing disclosure documents and responding to purchaser enquiries.
What if the fence has been in the wrong place for less than 15 years?
If a survey identifies a boundary issue before the 15-year period has expired, the registered owner may still have strong rights to protect their position.
Depending on the circumstances, options may include requesting removal of an encroaching structure, re-establishing the correct fence line, entering into a written licence agreement or negotiating a formal boundary adjustment.
Acting promptly is important. Delays can make disputes more difficult and may affect future rights.
Protecting yourself from future boundary disputes
Not every boundary issue needs to end up in court. In many cases, early advice and practical communication can resolve a problem before it becomes a major dispute.
Some simple steps property owners can take include:
- Obtaining a survey before purchasing an older property
- Reviewing Section 32 documents carefully
- Keeping records of fencing and boundary works
- Confirming boundary locations before building
- Seeking legal advice as soon as a discrepancy is discovered
Where a dispute has already arisen, our Litigation & Dispute Resolution team can help you understand your options and work towards a practical resolution.
Getting clarity on your adverse property rights
A fence line does not always tell the full story. While adverse property rights and adverse possession can sometimes affect ownership boundaries, every situation depends on its own facts, history and evidence.
If you’ve discovered a boundary discrepancy, are planning building works, or simply want clarity about your position, obtaining advice early can prevent a relatively small issue from becoming a much larger problem.
Our property lawyers at Phillips & Wilkins can discuss your situation with you and help you understand your options. Speak with our friendly team today on (03) 9480 1155, or send through an enquiry online.
