Bringing an adverse possession claim
Adverse possession allows a person who has occupied land openly, exclusively, and without permission for the statutory limitation period to claim ownership. The requirements and availability differ significantly between states — notably, adverse possession of Torrens title land is not available in all jurisdictions.
This is an 8-step workflow for bringing an adverse possession claim in Australia. It covers the threshold requirements, evidence gathering, limitation periods (which vary by state), and the application process for possessory title under Old System or Torrens title land.
Before you start
- Evidence of the period and nature of occupation
- Survey or title search confirming the land boundaries
- Identification of the registered owner and any encumbrances
- Jurisdictional assessment of whether adverse possession is available for the land type
The workflow
Confirm jurisdictional availability
Determine whether adverse possession is available for the land type in the relevant state. NSW allows claims against Torrens title land (Real Property Act 1900 s 45D), while other states may restrict it. Identify the applicable limitation period — typically 12 years, but 15 years in some jurisdictions.
Establish the elements of possession
Gather evidence establishing factual possession (physical control of the land) and intention to possess (animus possidendi). The possession must be open, exclusive, continuous, and adverse (without the owner's permission).
Compile the evidentiary record
Collect statutory declarations from the occupier and witnesses, photographs showing occupation over time, council rate notices, maintenance receipts, fencing records, and any correspondence with the registered owner.
Conduct title and historical searches
Obtain the current title search, historical title records, and any relevant survey plans. Identify all registered proprietors and any mortgagees or other interest holders who must be notified.
Assess and address potential defences
Consider whether the owner can defeat the claim — for example, by showing the occupation was with permission (a licence), that the limitation period was interrupted, or that the land is Crown land (which is generally not subject to adverse possession).
Lodge the application for possessory title
Prepare and lodge the application with the relevant Land Registry (e.g., NSW LRS using form 13R). Include the supporting statutory declarations, survey evidence, and title searches. Pay the lodgement fee.
Manage the notification and objection period
The Land Registry will notify the registered owner and other interested parties. If objections are received, prepare submissions responding to each objection. If the matter cannot be resolved administratively, it may be referred to the Supreme Court.
Obtain the new title or court order
If no objections are sustained, the Land Registry will issue a new certificate of title in the applicant's name. If the matter was referred to court, obtain the court order and lodge it for registration.
What you will have at the end
A new certificate of title (or court order) vesting ownership of the land in the applicant, with the adverse possession claim formally resolved and registered.
Common issues
- Insufficient evidence of continuous and exclusive occupation for the full limitation period
- Failing to identify that the occupation was permissive rather than adverse
- Not checking whether adverse possession applies to Torrens title land in the relevant state
- Missing interest holders who need to be notified during the application process
- Underestimating the time and cost of defended applications
Run this workflow on a real matter
Quillio researches adverse possession requirements across Australian jurisdictions and helps assemble the evidentiary checklist. See /practice-areas/property-lawyers or start a free trial.
Adverse possession rules vary significantly between Australian states and territories. This workflow uses NSW as the primary reference. Always confirm the applicable legislation and limitation period for your jurisdiction.
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