Adverse possession is a complex area of law that allows an individual to gain ownership of land that they do not legally own, under specific conditions. This principle, often referred to as "squatter’s rights,", is governed by strict requirements, including a continuous period of possession and the intention to possess the land to the exclusion of others. In Western Australia, this period is typically 12 years. After this period, an individual who satisfies the legal criteria can make a claim for ownership of the land by applying to the Registrar of Titles.

What is Adverse Possession?

Adverse possession arises when someone occupies land without the consent of the rightful owner, in a manner that is open, exclusive, continuous, and adverse to the rights of the true owner. Over time, the person occupying the land may acquire legal ownership if they meet the statutory requirements.

In Western Australia, for a claim of adverse possession to succeed, the following five elements must be proven:

1. Actual Possession: The individual must have physical control over the land, using it in a way that a rightful owner would.
2. Exclusive Possession: The land must be used exclusively by the possessor, not shared with the legal owner or the public.
3. Continuous Possession: The possession must be uninterrupted for a period of at least 12 years.
4. Adverse to the Owner’s Interests: The use of the land must be contrary to the interests of the true owner. It’s important to note that this does not require hostility or malice, but rather a lack of consent.
5. Intention to Possess: The individual must intend to possess the land as if they were the owner, and their actions should reflect that intention (e.g., living on the land, farming it, improving it, or erecting permanent structures).

How Does Adverse Possession Work in Western Australia?

If a person occupies land for a period of 12 years, meets the conditions outlined above, and the possession is adverse to the rightful owner, they may apply for ownership of the land.

There are two main avenues for applying for adverse possession:

1. Application to Landgate: If the legal requirements are met, the individual may submit an application to the Registrar of Titles at Landgate. This process is generally more efficient and cost-effective than court proceedings. The application involves submitting relevant documents such as a statutory declaration from the adverse possessor, declarations from disinterested persons, and supporting evidence like survey reports. Where there is unlikely to be any objection to the application, this avenue is generally preferred.
2. Court Proceedings: In some cases, particularly when an application to Landgate is objected to, a claim for adverse possession may need to be pursued in the Supreme Court of Western Australia. If successful, the Court will issue a legal declaration of ownership, which can then be registered with Landgate.

When Can Adverse Possession Claims Arise?

Adverse possession often occurs in situations where boundaries are unclear or ignored. Common examples include:

• Disputes over boundary lines where a fence is built incorrectly, and one neighbour uses land that technically belongs to the other.
• Cases where an individual uses a portion of their neighbour’s property as a driveway, garden, or pasture without objection from the property owner.
• Occupying abandoned or unused land for an extended period.

Potential Obstacles and Defences

The true owner of the land may dispute the adverse possession claim by raising defences such as:

• Lack of Continuous Possession: If the person claiming adverse possession failed to occupy the land without interruption for the entire 12-year period, the claim will likely fail.
• Lack of Intent to Possess: If the occupier’s actions don’t demonstrate clear intent to possess the land to the exclusion of others, this could negate their claim.

Why You Need Expert Legal Advice

Adverse possession is a highly technical area of law with strict requirements. If you are considering making a claim for adverse possession, or if you are trying to oppose one, it’s essential to seek professional legal advice. An experienced property lawyer can assess your case, help you gather the necessary evidence, and guide you through the legal process, whether through Landgate or the courts.

Contact Our Experienced Team Today

If you believe you have a valid claim for adverse possession or need to oppose one, contact our experienced team today. We have extensive experience in handling adverse possession claims and can help you navigate the complexities of this area of law.