Solicitors with clients who possess old laneways should consider lodging caveats to protect their clients’ possessory title and making an adverse possession application to the Registrar or Titles as soon as possible.
Under s 7B of the Limitation of Actions Act 1958 (Vic):
7B No title by adverse possession against Councils
(1) Despite any rule of law or provision made by or under this or any other Act, but without limiting section 7, the title of a Council to council land is not affected by reason only of any possession of that land adverse to the Council, irrespective of the period of that possession.
…
(3) In this section—
…
council land means land of which a Council is a registered proprietor under the Transfer of Land Act 1958;
registered proprietor and Registrar have the same meanings as in the Transfer of Land Act 1958.
A registered proprietor under the TLA is defined as ‘any person appearing by the Register or by any registered instrument to be the proprietor of any estate or interest in land’.
Many land owners have adversely possessed disused laneways for decades without needing to perfect their titles, many of whom purchased the possessory title from their predecessors.
The register often still shows the proprietor of the land to be the old developer who subdivided the land in the early years of the 20th century, even though local government legislation vests the title in the council.
However, it appears that the local council may be able to defeat old adverse possession claims by making an application to the Land Titles Office to become registered proprietor. If the adverse possessor does not have a caveat lodged, then the council’s application may proceed without their knowledge. The person in actual possession of the land may then need to purchase the disused land from the council. As the current occupant of the land probably purchased the possessory rights from their predecessor in title some years ago, this could mean that they have to buy the land a second time.
Anyone claiming adverse possession of a laneway will, of course, need to satisfy all the usual requirements of an adverse possession claim. Consideration will need to be given to whether or not an entry has been made in the Government Gazette declaring the disused laneway to no longer be a road and its impact on any adverse possession claim (see, for example, the discussion at [225-1250] of Halsbury’s Laws of Australia).
