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Adverse Possession, Caveats + Easements

We're experts in advising clients on general property law matters including adverse possession, caveats and easements.

In Australia, you can secure an interest in land by both legal and equitable means. This includes not only mortgages and fee simples, but also adverse possession claims, caveats and easements.

Many available interests in land exist and these are strongly protected, so competing interests often arise and it is not unusual for valid interests to be held by various different parties at the same time.

In resolving disputes, answering the question of who has the better interest is not always simple. It is therefore essential to engage a lawyer who understands this area of law.

What kind of interest do I have?

  • a) Adverse possession

    Adverse possession is the process through which title to another person’s real property is acquired without compensation, by holding the property in a way that conflicts with the true owner’s rights for a set period of time. If the adverse possessor acquires title, the true owner’s rights are extinguished.

    Examples of adverse possession include: a fence not in alignment with the title boundary; a building or structure placed over another person’s title boundary; or the deliberate enclosure or use of another person’s land without that owner’s permission.

    If you have never measured and surveyed your land to confirm the boundaries match up to your title, you may unknowingly have an adverse possession claim against a neighbour, or a neighbour may have one against you.

    The three main requirements for an adverse possession claim are:

    • Time limitation: you must have been in possession of the land for a specified period of time, which will depend on your jurisdiction (eg in Victoria, possession must be for at least 15 years).
    • Actual possession: you must prove actual possession, which must be open and peaceful and not secret or by force. It must not be with the consent of the owner.
    • Intention: the onus of proof lies with the party seeking to possess the land. Things like fencing of land and payment of rates are evidence of intention.

    Please note that adverse possession is unavailable in certain circumstances: for example, if the land belongs to the Crown, a council, water/rail authorities or an owners corporation.

    What should I do if I believe I have a claim for adverse possession?

    Consult a lawyer immediately. Your lawyer should be familiar with this complex area of law and should know which rules apply to your jurisdiction.

    If you want to submit a claim for adverse possession, you must also follow a set process. This includes submitting an application for a vesting order (with payment of a fee), a statutory declaration attesting to occupation of the land, and a statutory declaration by a ‘disinterested witness’ (that is, someone who can witness your occupation of the property but has no interest in the property themselves).

    Your claim will rely on the satisfactory completion of these (and other) steps, as well as the evidence you provide. This is why you must engage a lawyer who is familiar with this area of law.

    What if someone has made a claim against my land? 

    Seek legal advice immediately. Delaying action could affect your legal position.

    If the claim does not have merit or is arguable, it may be appropriate to file a caveat (see more details below) with the relevant state authority.

    As the ‘true owner’, you may stop time running by:

    • Ejecting the possessor and re-entering the land
    • Rejecting the possessor’s acts of possession; ie by the removal or erection of a fence
    • Instituting proceedings to recover the land

    However, you must be careful not to breach any applicable legislation. Consult a lawyer before you act.

  • b) Caveats, covenants and easements

    Caveats, covenants and easements can be applied to properties and they affect how the property is used.

    A caveat is a document that any person with a legal interest in a property can lodge at the relevant state authority. A caveat note will then appear on the title held by the land register (but not on the one held by the landowner), giving anyone with interest notice that a third party claims rights over the land. Caveats prevent any future registering of interests without your consent.

    Caveats can also be lodged and withdrawn online through PEXA (Property Exchange Australia Ltd) by lawyers or licensed conveyancers who are PEXA subscribers.

    Most Australian states have a simple process for the preparation, lodgement and acceptance of caveats. As a result, caveats are often lodged without legal advice. The relevant state authority will accept a caveat if the form has been completed properly and a supporting document or declaration has also been lodged. This does not mean the caveat is valid.

    Various aspects must be considered before preparing and lodging a caveat on property, otherwise it may be invalid – so it will not protect your interest and will expose you to a compensation claim. Different rules apply in each state, so always check with a lawyer to ensure your caveat is valid.

    Many interests in land are sufficient to support the lodgement of a caveat, including: as purchaser under a contract to acquire the land; as tenant of the land; or as chargee of the land. Other interests are considered ‘caveatable interests’ and some are not, so it is important to seek legal advice on whether you qualify.

    Different types of caveats can also be lodged (for example, ‘absolute caveats’ and ‘subject to claim’ caveats), and the choice of type is important because if you lodge the wrong one, a court may consider your caveat invalid – despite that you have a valid caveatable interest – and order its removal. The court may also require you to pay compensation to the landowner.

    Covenants

    A covenant is a written agreement between the seller and purchaser of a piece of land, restricting how the land can be used. For example, restricting the type of building material the purchaser can use.

    Property developers and individuals often use restrictive covenants to preserve the value of their property. For example, a landowner may enter into a restrictive covenant with a neighbour, preventing them from erecting structures that may obstruct their view. Covenants are enforced by contract.

    Easements

    Easements are rights that entitle the specific use and access of privately owned land. This results in the relationship between a dominant tenement, which benefits from the easement, and a servient tenement, which is burdened by the easement.

    While an easement confers limited rights to land use, it does not confer general possessory rights to the owner of the dominant tenement. Common examples of easements are drainage, sewerage and carriageway easements.

    For an easement on property to be enforceable as a legal interest, it must be registered on the property title or specified in legislation.

Why choose Slater and Gordon?

We have substantial experience in adverse possession matters and compulsory acquisition claims, as well as caveats, covenants and easements.

We can complete any claims, applications and other documentation for you, and help you understand the nature of your interest in land. We can also act for you in disputes if required. This is a complex area of law and it is crucial to get the right advice: otherwise you risk losing your interest in land.

By choosing us, we promise to:

  • Ensure your interests in land are protected
  • Help you enforce your valid claim in land
  • Minimise stress
  • Handle all relevant documentation, lodgement and correspondence with third parties
  • Guide you through the process and keep you informed at every step

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If you have a question, want some more information or would just like to speak to someone, make an enquiry now and we’ll be in touch with you very soon.

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