SPP-15 Possessory Applications and Bringing Land under the TLA

Version 1 - 18/07/2018

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1 Adverse Possession

1.1 General Requirements

An application for a Title based on adverse possession must be supported by a survey carried out by a licensed surveyor to clearly establish the relative positions of improvements and the boundaries of the land claimed. A sketch drawn by a person who is not a licensed surveyor will not be accepted.

Where the application is for a whole parcel of land or the remaining balance of the land in a Certificate of Title, a re-establishment survey of the boundaries must be effected, field notes lodged and a sketch of the survey presented with the application.

The sketch to be presented with the application for whole or part parcels must show the true legal land description of the land claimed, the boundary dimensions, area, and positions of improvements and fencing (including an estimation of their age and comment about their condition). In the case of boundaries there should be a clear statement as to whether there is or is not a fence on that boundary. It is preferable that the sketch be on A4 size paper. See plan example 40.

The sketch must also show the Certificate of Title number for each of the parcels of land abutting the land the subject of the application. If the abutting land is land registered under the Strata Titles Act, only the Strata Plan number needs to be shown on the sketch.

If abutting land is land registered under the Registration of Deeds Act 1856, Surveyors should indicate on the sketch the latest memorial relating to the current proprietor.

Where the subject land is bounded by a road or reserve a reference to the road or reserve needs to be shown on the sketch.

The surveyor is to sign a certification on the sketch certifying that all the information contained in the sketch is accurate.

When doing a feature survey for development purposes, if there is any indication that encroachments exist (or that the land occupied may differ from the true boundaries), it is important that any encroaching improvements be tied to some permanent marks. It is quite likely that those improvements will have been destroyed by the time a survey is carried out for an adverse possession claim.

If the claim is proven, a Deposited Plan of redefinition survey will need to be lodged amalgamating the claimed portion with the adjoining land of the applicant, together with any resultant balance lots and interests in accordance with the requirements described in Easements, Covenants, Notifications and Other Interests Section 1. See plan example 41. If a Survey Strata is affected then a new sheet 1 is required showing the diminished Strata Lots and the new parent parcel as the ‘Plan of’ heading. A new Form 3 and Valuers Certificate may also be required in some cases.

1.2 Possessory Applications Claiming Part of a Multiple Lot Title

Where a possessory application is lodged claiming part of the land contained in a multiple lot Title, the resultant Deposited Plan must show the residue of any affected lots as new lots. Lots not affected by the claim should not be depicted on the Deposited Plan.

The former tenure table on the Deposited Plan must clearly show that only a ‘part’ of the multi-lot Title is included in the Plan. Landgate will register a sundry document following registration of the possessory application to include the unaffected lots and the new balance lots from the old multi-lot Title in a new multi-lot Title.

In some situations, Landgate may maintain (i.e. partially cancel) the paper Title and the relevant graphic.

2  TLA Applications

Where an application is made to bring part of a lot under the provision of the TLA, a survey carried out by an eligible licensed surveyor to clearly establish the relative positions of improvements and the boundaries of the land claimed is required. A sketch drawn by a person who is not an eligible licensed surveyor will not be accepted.

Where the application is for the whole of a lot already found on a survey, a new survey will only be required at the request of the Commissioner of Titles.

The sketch to be presented with the application for part of a lot must show the true legal land description, the boundary dimensions and positions of improvements and fencing (including an estimation of their age and comment about their condition). In the case of boundaries there should be a clear statement as to whether there is or is not a fence on that boundary. It is preferable that the sketch be on A4 size paper.

The sketch must also show the Certificate of Title number for each of the parcels of land abutting the land the subject of the application. If the abutting land is land registered under the Strata Titles Act 1985 (STA), only the Strata Plan number needs to be shown on the sketch.

If abutting land is land registered under the Registration of Deeds Act 1856, Surveyors should indicate on the sketch the latest memorial relating to the current proprietor.

Where the land, the subject of the application is bounded by a road or reserve a reference to the road or reserve needs to be shown on the sketch.

The surveyor is to sign a certification on the sketch certifying that all the information contained in the sketch is accurate.

If the application is successful and a survey was necessary, then a deposited plan will need to be lodged by the surveyor.

This page was last updated on: 09 Jun 2020