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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

“Squatter’s Rights” or known legally as “Adverse Possession“, is a process by which a person who does not have rights to a property acquires legal ownership based on continuous long-term occupation. Adverse Possession can occur in all types of property, from a misplaced boundary fence to a large country paddock. Lawyer Nicola Voss explains.

What is adverse possession?

Adverse possession (or squatter’s rights) is a principle that allows a person to claim ownership over another person’s property without paying for it, if they have been occupying it without permission.  If the person claiming adverse possession is successful, then the owner’s right in the property is extinguished and the adverse possessor becomes the owner of the property.

What are the requirements for adverse possession?

There are three requirements for establishing adverse possession. These are:

1. Possession must have endured for 15 years. As noted in the section 8 of the Limitation of Actions Act 1958 (Vic), a person claiming adverse possession must be able to prove that the land has been adversely possessed for a continuous period of 15 years.

It is important to note that where the area claimed includes an easement, reserve or road, evidence of 30 years of non-use will need to be provided if the title to the property is to issue to the possessor free from the encumbrance.

2. Factual Possession. The possession must be open, not secret, peaceful and not by force, adverse and without consent of the title owner. This means that if the owner of the land consents to the possessor being there, or the possessor forcefully remains against the will of the owner, this will not be adverse possession.  

3. Intention to Possess. The adverse possessor must have the requisite intention to possess the land. Accordingly, the possessor must occupy the land to the exclusion of all other people. For example, fencing the property, grazing cattle and undertaking maintenance.

The Victorian Supreme Court in Whittlesea City Council v Abbatangelo [2009] VSCA 188 noted that even though the adverse possessor was not physically present on the land for the entire 15 years, they regularly visited and used the land throughout this period. Therefore, the Court noted that the intention to be proven for adverse possession is not an intention to own, but an intention to possess.

What land cannot be adversely possessed?

Land owned by the Commonwealth or State Governments, the Public Transport Corporation, Victorian Rail Track, water authorities and local councils cannot be adversely possessed. Therefore, it is important to investigate whether the claimed land is Crown land, before an application is submitted.

What happens if there is a ‘gap’ in the 15 years?

The Victorian Supreme Court in Roy v Lagona [2010] VSC 250 noted that there must be an intention to leave the land and that temporary absence will not constitute abandonment. For example, if Emily occupied the land for 10 years and then decided to leave and Sophie later became the adverse possessor for five years, Sophie cannot add Emily’s 10 years to meet the required 15 years. This is because the right to adverse possession has been ‘abandoned’ by Emily and Sophie will need to possess the land for another 10 years.

What happens if there are multiple possessors over the 15 years?

Where the final adverse possessor claims through a series of previous adverse possessors, each of their separate periods (being for less than the statutory requirement of 15 years), can be added together to extinguish the true owner’s title to the land. This is usually through conveyance or devise of property in a person’s will. Each previous adverse possessor must have met the requirements for adverse possession and it must be proven that at no point did abandonment occur.  

I am the owner of land being adversely possessed – how can I stop this?

As one of the key requirements of adverse possession is occupying the property ‘without consent’, the owner of the land can re-enter the property at any time for any period of time prior to the 15 years and this will ‘stop the clock’ on the possessor’s time. If the possessor has occupied the land uninterrupted for 15 years prior to the owners’ re-entry, they will have rights to prove adverse possession.

Any proceedings brought with respect to the adverse possession will also stop the 15-year time limit. Accordingly, if you are notified of an adverse possession claim with respect to your property and such claim is arguable or has no merit, a caveat should be filed within 21 days with Land Victoria.

I have adversely possessed land for 15 years or more, how do I make a claim for adverse possession?

Pursuant to sections 15, 26P and 60 of the Transfer of Land Act 1958 (Vic), there are certain requirements that must be addressed when completing a typical adverse possession application.

A statutory declaration will be required from the applicant and, if necessary, the applicant may be required to provide evidence of their occupation of the property for at least the last 15 years. Each statutory declaration will need to:

  1. explain the circumstances as to when possession commenced;
  2. establish that the possession was exclusive, continuous and without abandonment;
  3. describe the activities undertaken on the land, such as who it was occupied by, how it was used and whether such use was continuous, uninterrupted and exclusive;
  4. indicate how exclusive possession was demonstrated (such as if the land was unfenced or fenced), and how the land was adequately maintained to exclude other persons; and
  5. provide details of how the land was accessed, if any improvements were undertaken and the value of the land being claimed.

A statutory declaration must also be submitted from a disinterested witness (such as a neighbour who has known the land for 15 years or more) and from the applicant’s lawyer.  

If you would like further information in relation to adverse possession, please contact our property team on (03) 9560 2922.

How Sharrock Pitman Legal can assist?

If you would like further information in relation to an adverse possession claim, or assistance regarding a property matter, please do not hesitate to get in contact with us on 1300 205 506. As Accredited Specialists in Property Law, we are well equipped to provide expert legal advice regarding your unique circumstances.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

,

.

Nicola Voss

For further information contact

Nicola Voss

Nicola Voss is a lawyer at Sharrock Pitman Legal.

She deals with areas of Property Law and Litigation. For further information, contact Nicola on her direct line (03) 8561 3315.

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Property Law

“Squatter’s Rights” or known legally as “Adverse Possession“, is a process by which a person who does not have rights to a property acquires legal ownership based on continuous long-term occupation. Adverse Possession can occur in all types of property, from a misplaced boundary fence to a large country paddock. Lawyer Nicola Voss explains.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.