Adverse Possession - former laneways

Property Law: 23 March 2019

Reports in the Preston Leader of Reservoir property owner, Greg Goldenberg gaining title to a discontinued laneway under adverse possession laws demonstrates that successful outcomes are possible despite the need to tiptoe through a legal minefield (click here for the article). 

The law of adverse possession starts from the concept that land should not be allowed to lie idle in circumstances where the proper owner cannot be found or has abandoned the land. As a result, the law provides that if you adversely possess someone else's land for 15 years, they cannot take it away from you and you can apply to the Office of Titles to have the land registered in your name. Moreover, during that 15 year period you have all the rights of the true owner against everyone else in the world - except the true owner.

There are exceptions to that general principal - notably you cannot adversely possess land owned by the Crown, water authorities, Victrack or Municipal Councils. Similarly if you are a member of an Owners' Corporation you cannot adversely possess common property of the Owners Corporation.

The exception in relation to Councils requires closer scrutiny. It applies only to land of which the Council is registered as the proprietor under the Transfer of Land Act. So that is an exception to the exception. Councils can also own land under the Property Law Act  and land which is administered by a Council might still be registered in the name of the original subdivider/developer.

Laneways and roads provide an additional exception. Whilst the Road Management Act provides that all roads vest in Councils when they become a road, that provision probably only applies to roads created after 2004. In those circumstances, the Registrar of Titles creates a Title in the name of the Council, so adverse possession will not apply to them.

Pre-2004 roads are also exempt from the adverse possession rules if they have become "public highways.  Roads can become public highways by notice published in the Government Gazette or if the owner by word or action dedicates the land to the public and the public accepts that 'gift' - normally by using the road.

Where a public highway is created by acts of dedication and acceptance, proof is often difficult. Does an owner dedicate land to the public if a plan of subdivision creates a laneway between two blocks of land, providing access to two other blocks at the rear?  Is it a public or a private right of way?

Because the Road Management Act provides that all roads vest in Councils, some Councils have been offering to close and sell back to adjoining residents, land which Council asserts is a road.  In some cases this constitutes an unprincipled cash-grab. The person in possession will often have a better right to the land than the Council, yet they are being asked to pay for it! Then again, it can sometimes be cheaper to buy what you already own, than to go about the task of assembling evidence of 15 years' exclusive possession.

The 15 year period needs to be continuous, so sometimes, issues arise about continuity. Someone in adverse possession can pass the adverse possessory rights to another person if an appropriate Deed is used. In this way the two owners' combined period can be used to fulfil the 15 year requirement.

If the land in question has not been included in the Municipal Roads Register, Councils normally do not contest adverse possession applications. If a former laneway or road is on that Register, the situation presents more of a problem. You might need to seek a declaration from the Court that the road is not a public highway before the Registrar of Titles will allow you to take title.