Adverse possession is a legal doctrine that allows a person to claim ownership of land under certain conditions, even if they are not the legal owner. Often misunderstood and highly complex, adverse possession plays a critical role in property disputes across Australia. Understanding the essential requirements is crucial for both landowners and claimants. In this article, we explore the five core requirements for adverse possession, with a focus on Western Australia, and guide when to seek help from Adverse Possession Lawyers Perth.
What is Adverse Possession?
Adverse possession in Australian law allows an individual who occupies land without the legal owner’s permission to apply for ownership after a specific period, usually 12 years in Western Australia. This principle recognises long-term occupation as a legitimate path to ownership, provided the occupation satisfies specific legal criteria.
The doctrine stems from common law and has been shaped by significant adverse possession case law. In Western Australia, the Land Titles Registration Act 1925 and the Limitation Act 2005 are relevant in adverse possession claims.
The 5 Legal Requirements for Adverse Possession
For a claim of adverse possession to succeed, the claimant must meet all five of the following legal requirements:
1. Actual Possession of the Land
The first requirement is that the person must physically possess the land. This means more than just being present; the occupier must use the land as an owner would. Acts such as building structures, fencing the area, planting, maintaining, or making improvements all demonstrate actual possession.
Merely walking across the land or using it occasionally is not sufficient. The courts will look for consistent and exclusive use that indicates an intention to possess the land as if they were the rightful owner.
2. Exclusive Possession
The second requirement is exclusivity. The claimant must occupy the land to the exclusion of others, including the legal owner. Shared use or permission from the owner negates exclusivity and defeats a claim for adverse possession.
For example, if the legal owner continues to access or use the land during the relevant period, or if the occupier had the owner’s consent, exclusive possession will not be established. Successful claims are typically those where the occupier treated the land as their own, without interference.
3. Open and Notorious Use
The third requirement is that the possession must be open, visible, and apparent, not secret or hidden. This ensures the legal owner has a reasonable opportunity to become aware of the occupation and take action if they wish to contest it.
The rationale behind this is fairness. If the owner fails to take action while someone else is clearly and publicly using their land, the law may eventually allow the occupier to claim ownership.
4. Continuous Possession for the Statutory Period
To satisfy this requirement, the occupier must maintain continuous possession for a set period. In Western Australia, the statutory period is typically 12 years. If the occupier leaves the property for an extended period or is evicted during that time, the clock may reset.
Continuity does not necessarily mean uninterrupted physical presence, but it does require the type of possession that a true owner would exhibit over time. Occasional absences do not necessarily disqualify a claim, but a break in possession can be problematic.
5. Possession Without the Owner’s Consent
Finally, possession must be adverse to the interests of the legal owner. If the occupation is with the owner’s consent, such as through a lease, license, or agreement, there is no adverse possession.
This is perhaps the most misunderstood aspect of adverse possession law. The essence of a successful claim lies in the absence of consent. The law favours owners who take active steps to manage and protect their property rights. If an owner willingly allows someone to occupy the land, the law will not strip their ownership in favour of the occupier.
Why Legal Guidance Matters
Adverse possession claims are rarely straightforward. They involve complex factual and legal analysis, including historical land use, survey boundaries, and title registration. Incorrect assumptions or poorly prepared claims can lead to lengthy disputes or rejection by the courts.
Engaging experienced Adverse Possession Lawyers Perth is essential if you’re considering a claim or defending against one. At Property Settlement Lawyers Perth, we assist clients in navigating the complexities of adverse possession case law, collecting necessary evidence, and preparing valid claims or defences.
Final Thoughts
Understanding the five requirements of adverse possession—actual, exclusive, open, continuous, and non-consensual possession—is essential for anyone involved in a land dispute in Western Australia. These elements must be proven clearly and consistently for a claim to succeed.
Whether you believe you have a right to claim land or need to protect your property from an adverse possession claim, timely legal advice is critical. T he team at Property Settlement Lawyers Perth provides trusted legal advice and representation in all matters involving adverse possession in Australian law. Contact us today to discuss your situation with skilled professionals who understand the intricacies of property law in Western Australia.
