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Property Law: Adverse Possession: an exception to the Indefeasibility of Title rule

Indefeasibility of title is central to Australia’s system for recording land ownership. In Queensland any person who is involved in a land transaction can rely on the accuracy and validity of the land register as maintained by the Department of Natural Resources and Mines.

However, the land register is only accurate and valid to the extent of any exceptions as provided for in the Land Title Act 1994 (Qld) (‘the Act’). One example of an exception to the indefeasibility of the title rule is whether another person would be entitled to be the registered owner because that person is in ‘adverse’ possession of that land. Adverse possession is a claim where a person in possession of land owned by another entity/person may have a claim to be the registered owner.

When a claim for adverse possession has been made, various factors are considered including whether the person making the claim has had continuous possession of the land to the exclusion of the landowner for a period of at least 12 years.

An adverse possession application must be made in accordance with the requirements as set out in the Act. A person claiming to already own the land has the opportunity to dispute the application made by the adverse possessor by registering a caveat over the subject land within the prescribed time frame.

The Act restricts an adverse possession claim so it cannot relate to a:

  1. part of a lot;

  2. lot that may be created in the future by way of a subdivision;

  3. lot for which the registered owner is the local council or the State;

  4. lot subject of an encroachment where the adverse possessor claims possession of the lot to the extent of the encroachment.

Due to the complexities surrounding claims for adverse possession we recommend that you contact Creevey Russell Lawyers to obtain legal advice tailored to your individual circumstances.

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