Adverse Possession, Easements & Covenants
What is Adverse Possession?
Adverse possession is a method of gaining legal title to real property by the actual, open, hostile, and continuous possession of land to the exclusion of its true owner for the period prescribed by state law.
The legal theory underlying the vesting of title by adverse possession is that title to land must be certain. Since the owner has, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period of time is recognised as its owner.
Anyone, including private individuals, corporations, the federal government, states, and municipal corporations, can be an adverse possessor.
Where the Applicant can provide satisfactory proof of 30 years adverse possession, the Registrar will grant an application subject to payment of a contribution. This is usually about 0.5% of the value claimed but may be waived entirely where the Registrar is of the opinion that granting the application would not impose any risk to the Consolidated Fund.
In the case of 15 years adverse possession, the levy may be increased to approximately 1%. You may need to contribute to the Consolidated Funds account and we will be advised by the Land Titles Office of this requirement once the documents have been lodged.
If you think you have the right to acquire land by adverse possession, or if you think you are under threat of losing your land to an adverse possession claim, please do not hesitate to contact us immediately to assess the validity of the potential claim.
What proof of support do I need for an Application for Adverse Possession?
- Date possession was commenced and the circumstances, e.g. under contract of sale and from whom.
- Proof that the applicant, either alone or together with other persons, has been in exclusive possession of the land and this has been uninterrupted for at least 15 years.
- Use of land, who occupied it throughout the period of ownership and whether ownership was exclusive, continuous and uninterrupted.
- How was the land kept exclusive e.g. fence, wall, buildings.
- Means of access to the land.
- Improvements to the land, if so, what and when and by whom.
- Who paid rates for the land and how can this be verified e.g. letter from Council identifying the land and confirming who has paid the rates.
- Value of the claimed land and evidence documenting the basis upon which this value is calculated (e.g. rates notice, sworn valuation).
- Details of any dispute with the owner of the land.
- Confirmation that no part of the land has been proclaimed by a public road.
- Confirmation that the Applicant has not acknowledged the title of the registered proprietor in respect of the land claimed or any part thereof.
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What is a restrictive covenant?
A restrictive covenant is a type of real covenant, a legal obligation imposed in a deed by the seller upon the buyer of real property to do or not to do something. Such restrictions frequently “run with the land” and are enforceable on subsequent buyers of the property.
What are common Restrictive Covenants?
- A restriction on the number of dwellings on a parcel of land eg. one per lot.
- A restriction on the minimum or maximum size that a dwelling may be built.
- A restriction on the building materials allowed to be used in the building of a dwelling eg. no weatherboard houses or must have a tiled roof.
- Landscaping restrictions.
- Building height restrictions.
- Design to be approved by a design assessment panel.
- Front façade to be in keeping with the streetscape.
- Restrictions on the exact positioning of dwelling.
- Restrictions on completion and occupancy dates eg. denying an investor the right to hold on to vacant land in a new subdivision.
- A restriction on the right to subdivide.
- Restrictions on signage, advertising and storage of commercial vehicles and equipment on the property.
- Removal of gravel, stone and other materials from the site.
What is an easement?
An easement is an area of land that forms part of the title of the property that has been set aside for special purposes. The area covered by the easement is generally not accessible to build over.
What types of easements can you possibly remove or build over?
- Water easement
- Drainage easement
- Sewerage easement
- Telephone easement
- Gas pipeline easement
- Solar easement (right to light – eg building a window restricting neighbour’s light)
- View easement (right to an existing view)
- Driveway easement (mutual driveway access with another party)
- Beach access
- Dead-end access (usually set aside to allow pedestrians on a dead-end street access to the next public way)
- Conservation easement
- Historic preservation easement
- Easement of lateral and subjacent support (prohibits an adjoining land owner from digging too deep on his lot in any manner depriving his neighbour of vertical or horizontal support on the latter’s structure eg. buildings & fences
If you think you are subject to an easement over your land and would like to discuss the possibility of building over the land or using the land, we can advise you if you are permitted to use the land or if you can apply to remove the easement.
If you would like to add an easement to your land, please do not hesitate to contact our lawyers to discuss the possibility making an application to register an easement.
Please do not hesitate to contact our experienced Property Lawyers on +61 3 9500 1722, request a cost estimate or email an enquiry.