Application and Survey Branch Land Victoria Adverse Possession and Section 99 Applications ISV Seminar 24 th May 2013 Disclaimer This publication may be of assistance to you but the State of Victoria and its employees do not guarantee that the publication is without flaw of any kind or is wholly appropriate for your particular purposes and therefore disclaims all liability for any error, loss or other consequence which may arise from you relying on any information in this publication.

Application and Survey Branch Land Victoria Overview Adverse Possession –General Characteristics –Limitations of Actions Act 1958 –Survey Information –Encumbrances –Evidence –Lodgement –Notices –Resulting Parcels

Application and Survey Branch Land Victoria Overview Section 99 Applications –General Characteristics –Overlap Diagrams

Adverse Possession General Characteristics Minimum 15 years possession 30 years proof of “non-user” is required for title to issue free of encumbrances Current search of affected folio is critical

Adverse Possession General Characteristics No limit on the size of the land claimed Claims against part(s) or whole titles are acceptable Application does not usually amend applicant’s title(s), but this may be possible

Adverse Possession Limitations of Actions Act 1958 Period of Adverse Possession must be at least 15 years (Sec. 8) Protects certain land from Adverse Possession Crown Land (Sec. 7) PTC or Victorian Rail Track (Sec. 7A) Land in the name of a Water Authority (Sec. 7AB) Common Property by member(s) of Owner’s Corporation (Sec. 7)

Adverse Possession Limitations of Actions Act 1958 Protects certain land from Adverse Possession Council land (Sec. 7B) –Where a Council is the Registered Proprietor of affected land –Note many “laneways” are still in name of original subdivider - councils acquiring VicRoads –No specific Statutory protection, but recent court case confirmed Crown status

Adverse Possession Survey Information Plan of Survey –signed and dated –subject land uniquely identified –full enclosure shown Surveyor’s Report –signed and dated –description of re-establishment of applicant’s and subject land(s)

Adverse Possession Survey Information Abstract of Field Records –signed and dated –subject land defined –full enclosure with applicant’s land shown –survey not older than 2 years, showing current occupation Examiner’s Report –re-establishment (applicant’s and subject land) –encumbrances –list affected folios (as to fee and appurtenancies) –enclosure / access –no discussion of evidence

Adverse Possession Survey Information (Plan of Survey) signed and dated by Surveyor Full enclosure with applicant’s land subject land uniquely identified

Adverse Possession Survey Information (Abstract of Field Records) full enclosure with applicant’s land subject land uniquely identified

Adverse Possession Survey Information (Surveyor’s Report) Purpose of Survey Encumbrances Occupation

Adverse Possession Survey Information (Surveyor’s Report) Purpose of Survey Encumbrances

Adverse Possession Survey Information (Surveyor’s Report) Occupation

Adverse Possession Survey Information (Complex Plan of Survey)

how we got to this – LP’s of different origins

Adverse Possession Survey Information (Complex Plan of Survey) survey must be extensive enough to fix parcels identifies all different parcels within occupation

Adverse Possession Non Survey 20%-30% of Adverse Possession claims are lodged on a Non- Survey basis Non-Survey requirements Claimed land must be surrounded by: –the applicant’s land –Government Roads –Crown Land –or any combination of the above Waive Survey (WS) –requests must be for whole parcels and are based on aerial photos –usually lodged by solicitor’s

Adverse Possession Encumbrances If application is made for an unencumbered title: –the applicant must prove existing encumbrances extinguished by the possession –where the encumbrance is an easement (eg. rights of carriageway, drainage etc.), proof of non use for at least thirty years is required (Sec. 73(3) & 73A TLA) –LGA rights not removed by Sec. 60 –covenants can be removed (TLA amended 2009)

Adverse Possession Encumbrances Where the encumbrance is a Road: –evidence of 30 years of non-use is required –proof of Road Management Act status required – council response critical –generally no abuttal shown to balance of road

Adverse Possession Encumbrances Where the encumbrance is a Reserve: –Carefully research if the reserve was created for a specific purpose, and if there are any underlying easements –Reserves on Subdivision Act plans Council are often the Registered Proprietor, no adverse possession –Reserves on TLA plans Not for a purpose, remove if possession proven Drainage / Sewerage – prove not used for that purposes, or provide consent of authority

Adverse Possession Examiner’s Report description of subject land alignments applicant’s land subject land affected titles enclosure and access encumbrances documents to be amended

Adverse Possession Examiner’s Report description of subject land alignments

Adverse Possession Examiner’s Report applicant’s land subject land

Adverse Possession Examiner’s Report affected titles enclosure and access

Adverse Possession Examiner’s Report encumbrances documents to be amended

Adverse Possession Evidence Example occupier of the land identification of the land survey plan to be an exhibit circumstances of possession establishes exclusive possession use, enclosure and access to the land improvements identify municipality who paid the rates

Adverse Possession Evidence Example occupier of the land identification of the land survey plan to be an exhibit

Adverse Possession Evidence Example circumstances of possession establishes exclusive possession

Adverse Possession Evidence Example use, enclosure and access to the land improvements

Adverse Possession Evidence Example identify Municipality who paid the rates

Adverse Possession Lodgement no duplicate title required * application critical (Form 24) evidence of 15 years possession must be lodged pre-lodgement check SPEAR – can lodge survey documents * unless requesting “consolidation” Sec. 62(2)(b)(ii) TLA

Adverse Possession Lodgement Checklist Lodgement Checklist (page 1)

Adverse Possession Lodgement Checklist Lodgement Checklist (page 2) Lodging Party to use as a checklist - do we have all relevant information? Available through

Adverse Possession Application (Form 24) Land description includes title reference and identifies subject land by reference to Plan of Survey, LS and date of plan Request for vesting order states either “free of encumbrances” or “subject to existing encumbrance/s” Eg: The land marked ‘A’ on plan of survey by J. Bloggs L.S. dated 27/03/2006 being part of the land contained in Certificate of Title Vol.1234 Fol.456

Adverse Possession Notices Notices to be sent to the following affected parties: –Registered Proprietors of affected titles –any parties with an interest in affected titles –Registered Proprietors of lands whose appurtenant rights are to be extinguished Notices to Lodging party: –Formal Requisitions listings requirements for applicant advertisement for local paper copies of Statutory Notice / Plan for display on subject land bankruptcy notification

Adverse Possession Statutory Notice Details of applicant and the subject Land Steps the affected party can take Diagram showing affected land – often uses the Plan of Survey

Adverse Possession Resulting Parcels Sec. 62(2)(b)(ii) amended 2009 can now “consolidate” vested land with applicant’s land “at the Registrar’s discretion…” Depends of circumstances –preferable for strips and slivers –mortgages may prevent –status (Road, Reserve) may prevent –parcelation (Sale of Land Act Sec. 8A) may prevent –at least try to have both parcels on the same Title Plan

Adverse Possession Resulting Parcels Consolidate vested land with applicants land: –must lodge CofT –may therefore be able to amend applicant’s land –may need further direction if multiple applicant’s parcels

Section 99 Applications General Characteristics LV Legal – Must amend all boundaries to accord with “bona fide” occupation Resulting parcelation same as before application, internal boundaries need to be considered Consideration of affect is critical –extent of survey –fitting together survey of different origins –may need Overlap Diagram

Section 99 Applications Overlap Diagram Must consider affect on all parcels, especially where they don’t fit neatly together

Section 99 Applications Overlap Diagram Diagrams do not need to be complicated – they need to demonstrate that all affects have been considered

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