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Adverse Possession Claims: Question: When is a road not a road? Answer: When it is a laneway

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By Evelyn Marcou, Senior Associate, MST Lawyers 

Adverse possession claims in residential areas tend to fall into two categories. The first, is where the fence line is misaligned with the title boundary. The second is where your property has enclosed an old laneway, disused road or even upon old creek lines.

Generally the first involves claiming the land against your neighbour. The second can often be against the local council or the person who originally subdivided the area and is now dead. Note, you cannot make an adverse possession claim against the Crown or Crown land and in most cases you now cannot claim against Councils because of legislative changes.

Adverse Possession laws enables the occupier of a piece of land to obtain ownership of it if they can prove uninterrupted and exclusive possession of the land for at least 15 years (the statutory period for Victoria). It is akin to “squatting” on your neighbour’s land or tacking is another term used.

The land that may be affected may be a sliver or be quite substantial. The justification for claiming the land may be monetary or may be very important vis a vis a subdivision or re-development of the property or you simply want the fence lines to match and coincide with the title boundaries

The recent decision of McMillan J in Anderson v City of Stonnington [2016] VSC 374 (“Anderson v Stonnington”) highlights an important issue that needs to be considered before making a claim for adverse possession in the second category mentioned above.

In Anderson v Stonnington, her Honour considered whether an old laneway in South Yarra subject to two easements was also a public highway at common law. Her Honour reviewed and summarised longstanding authorities on the creation of public highways at common law, particularly where the disputed land is not recorded in title documents as a road. The court concluded that the laneway was a public highway because it had been open to the public and used ‘without force, without secrecy and without permission’ for a very long period of time.

This has implications for an attempt to acquire title to a disused laneway by adverse possession. The general position at common law is ‘once a road, always a road’.  It is generally not possible to extinguish a public highway by adverse possession (see Halsbury’s Law of Australia [225 – 1250]). This has now been largely codified in statute (e.g. cl 2(1)(d) of schedule 5 to the  Road Management Act 2004 (Vic)). Consequently, anyone considering bringing a claim for adverse possession of an unused laneway will need to consider whether the laneway attained a status of ‘public highway’ at common law. If it has, the claim may be unable to proceed.

For further information, please contact our Property & Leasing team by email property@mst.com.au or by telephone Ph: +61 3 8540 0200.