Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time.

Adverse possession can be formed in the case where a fence or a structure has been incorrectly (sometimes deliberately) placed on adjoining land belonging to another registered proprietor. Certain rights can arise from this occurrence, with the encroacher being able to make a claim for the land, and the owner whose land has been encroached upon potentially losing that portion of their land.

In Western Australia, if a person occupies a parcel of land owned by another for a period of at least 12 years adversely to the interest (i.e. against the wishes) of the registered proprietor, that person is entitled to make an application that the land is transferred to them.

The basic elements of adverse possession under the common law are:

  • actual possession: such that the legal owner has a cause of action for trespass. The occupier must act as though they own the property and use the land;
  • continuous and uninterrupted: possession must represent continuous uninterrupted occupation and use of the land. Occasional activity interspersed by periods of inactivity fails the test of continuous and uninterrupted possession;
  • hostile: possession must be adverse to the interests of the legal owner and without permission of the legal owner;
  • exclusive: possess the land to the exclusion of the legal owner and not share possession with the legal owner;
  • open and notorious: use the land in a manner so as to place the legal owner on notice that a trespasser is in possession.

For further information about any of these matters, contact Springdale Legal.