Fences Act: Dividing Fence Dispute - Victoria (Applicant) - Adverse Possession Claim Arising from Boundary Dispute (s 30E)

Who can make an adverse possession claim in a Victorian fencing dispute?: An owner may file a complaint under s 30E of the Fences Act 1968 claiming title by possession to part of the adjoining land only if a complaint has been filed under another provision of the Act about the owner's land, and only for land on which the fencing works in that complaint are to be carried out (s 30E(1)). The Court may then make an order about who is entitled to title by possession of that part (s 30E(2)). Section 30E does not affect the Limitation of Actions Act 1958, the Transfer of Land Act 1958 or any other law about adverse possession (s 30E(3)).

Which land cannot be claimed by adverse possession in Victoria?: The Limitation of Actions Act 1958 protects Crown land (s 7), land of Victorian Rail Track (s 7A), land of a water authority (s 7AB) and council land registered in a council's name (s 7B, subject to a transitional exception), and protects common property against possession by another lot owner (s 7C). Otherwise an action to recover land cannot be brought after fifteen years from the date the right of action accrued (s 8).

Jurisdiction: Magistrates' Court of Victoria (Civil Division) under section 30E of the Fences Act 1968 (VIC). Claims involving larger land areas or complex title issues may need to be transferred to the Supreme Court.

The Process at a Glance: Instruct a licensed surveyor to survey the legal boundary and the fence line position. If the survey confirms the discrepancy and the client has possessed the strip for 15 years or more, obtain a statutory declaration from the client and any witnesses confirming continuous exclusive possession. File a section 30E complaint in the Magistrates' Court. Note that adverse possession claims are legally impossible over Crown land, council Torrens land, VicTrack rail land, or Owners Corporation common property.

Key Legislation and Case Law: Fences Act 1968 (VIC) s 30E (Magistrates' Court adverse possession jurisdiction). Limitation of Actions Act 1958 (VIC) ss 7, 7A, 7AB, 7B, 7C (land protected from adverse possession), s 8 (15-year limitation period). Transfer of Land Act 1958 (VIC) s 60 (application to bring land under the Act following successful adverse possession claim). Key case: Whittlesea City Council v Abbatangelo [2009] VSCA 188 (elements of adverse possession in Victoria).

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