Where a person has had a certain period of uninterrupted, and usually, ungoverned possession of a parcel of land, that person may be entitled to claim ownership of that land. While it seems unfair on the face of it, if the registered proprietor has been inactive or silent and the occupier has been treating the land as their own, then equity may intervene.

Parties other than the "registered proprietor" may have a right to claim for "adverse possession" of a parcel of land. Adverse possession claims are based both on common law concepts and statutes that usually prescribe the required period of uninterrupted possession.

In everyday practice as a property lawyer, the issue of possessory title is unlikely to arise that often, however if it does, you should be aware of the fundamental points of law. To succeed in a claim for adverse possession, there are several basic concepts to understand:

• exclusive use and actual possession of the property;

• obvious and visible use; and

• continuous use.

There are also time periods that apply that are set out in the Limitation Acts of the various states. See Description of possessory title.

In NSW, a claim for adverse possession may be made against an owner of land after a period of 12 years for applications made after 1970 (for applications made before 1982 (which is 12 years after 1970), the relevant period is 20 years). The claim must satisfy a number of requirements in addition to the period of time — ie, sufficient proof of the possession needs to be given.

The method of applying for a possessory title is via an application with the LPI. See the LPI website for the Application for a possessory title form.

In Victoria, the relevant period is 15 years: s 8 of the Limitation of Actions Act 1958 (Vic). The method for applying for possessory title is via a vesting order with Land Victoria.

In Queensland, s 13 of the Limitations of Actions Act 1974 (Qld) states that the time period for an action to recover land is from 12 years after the right of action accrued. An original land owner cannot therefore claim title against an adverse possessor after 12 years in possession. See s 99 of the Land Title Act 1974 (Qld), which sets out the requirements that need to be satisfied.

In Western Australia, a claim for adverse possession may be made against an owner of land after a period of 12 years, unless the owner is under a specified form of disability, where the period is 30 years.

In South Australia, under s 4 of the Limitation of Actions Act 1936 (SA), claims for recovery of land must be made within 15 years after the right of action accrued. An application for a certificate of title by possession can be made using the procedure under Pt 7A of the Real Property Act 1886 (SA).

In Tasmania, the relevant minimum period is 12 years: s 10(2) of the Limitation Act 1974 (Tas). The method for applying for possessory title is via a vesting order from the Recorder of Titles under Pt IXB of the Land Titles Act 1980 (Tas).

In the Northern Territory, the concept of adverse possession does not operate. That is, no right, title or interest may be acquired by virtue of adverse possession as against a registered owner of land. In the Northern Territory, no claims for adverse possession can be made as they are expressly prohibited by legislation. Section 198 of the Land Title Act (NT) provides that “a person does not acquire any right or title to land under this Act by any length of adverse possession.”

In the Australian Capital Territory (ACT), the operation of the Land Titles Act 1925 (ACT) prevents an individual in possession of land from acquiring title to that land from the registered proprietor.

It is worth noting that the draft “Uniform Torrens Title Act” does not seek to unify the time limits for claims of adverse possession which vary between the states. Under the draft Act all states would retain their current laws for both adverse possession against private ownership and adverse possession against the Crown.

The effect of a successful adverse possession claim is to destroy the title of the dispossessed person (ie, the registered proprietor). Adverse possession does not, however, destroy the rights of other persons who have an enforceable interest in the land (such as easements or restrictive covenants). See Possession against private ownership.

In practice, claims for adverse possession against the Crown in NSW are extremely difficult. The Limitation Act 1969 (NSW) provides that to be successful for a claim for adverse possession against the Crown in NSW, adverse possession must be proved for a period of 30 years (commencing from 1 January 1970). Where the possession commenced prior to 1 January 1970, a period of possession of at least 60 years must be shown.

There are categories of Crown land that are excluded from claims for adverse possession. Therefore it is prudent to first check the type of Crown land that you are considering an adverse possession claim against before you start the process.

In Victoria, it is not possible to make a claim for adverse possession against the Crown, the Victorian Rail Track (since 1993), a water authority (since 2006) or over Torrens title land held by a municipal council (since 2004, although transitional provisions applied until 2005). See ss 7A to 7C of the Limitation of Actions Act 1958 (Vic).

In Queensland, adverse possession similarly may not be claimed against land owned by the Crown. Section 6(4) of the Limitations of Actions Act 1974 (Qld) provides that the right, title or interest of Crown land shall be deemed not to have been in any way affected by reason of any possession of such land adverse to the Crown for any period whatsoever.

In Western Australia, adverse possession is not available against the Crown: s 36 of the Limitation Act 1935 (WA) and s 76 of the Limitation Act 2005 (WA).

In South Australia, a claim for adverse possession against the Crown would be inconsistent with the Crown Land Management Act 2009 (SA) which, under s 7 of the Act, prevails over the Real Property Act 1886 (SA) to the extent of any inconsistency.

In Tasmania, adverse possession may generally be claimed against land owned by the Crown but the minimum relevant period is 30 years (s 10 (1) of the Limitation Act 1974 (Tas)) rather than the typical period of 12 years and certain classes of land are excluded, eg roads and foreshore: s 10 (4) of the Limitation Act 1974 (Tas). The method for applying for possessory title is via a vesting order from the Recorder of Titles under Pt IXB of the Land Titles Act 1980 (Tas).

There are no claims for adverse possession against the Crown in the Northern Territory or ACT.

See Possession against the Crown.