The principle of indefeasibility (the State guarantee as to ownership of land) applies only to Torrens Title land. Ownership of Old System Title land is certain only if another person with a better claim cannot be established. The common law has always regarded the possession or occupation of a parcel of land as sufficient evidence of ownership. Consequently, a trespasser (or adverse occupier) who has been allowed undisturbed and uninterrupted possession of a parcel will, in time, displace the documentary owner and bar their rights to recover the land.
The quality of possession is a matter for the Courts, but a general concept is that the activity must be sufficient to establish the occupier as owner in the eyes of the neighbourhood. It should be such that the dispossessed owner could readily assess, in passing, that they were being displaced in title.
An applicant claiming title on the grounds of adverse possession must, among other things, support their claim by a plan of survey to establish the area of enclosure (if the area being claimed is less than a whole parcel of land) and by statutory declarations from several disinterested persons testifying to the extent and nature of the occupancy relied on. The applicant should also demonstrate who, but for their possession, would be entitled to the land, and this is taken to require the lodgment of a schedule setting out a search of the documentary title. To make a claim of adverse possession against Old System land, a Primary Application is required. See also information regarding lodgment of Primary Applications.
Possession against the Crown
No claim for adverse possession can be made against the Crown in cases of:
- land of the Crown which has been:
- set out as a road
- left between Crown grants for use as a road or driftway (for example a travelling stock route)
- dedicated under any Act for a public purpose or
- reserved in a Crown Grant or recorded in a folio of the Register as being reserved to the Crown
unless the claim matured by 2 October 1931.
- land of the Crown which has been reserved under the former Crown Lands Acts or any other Act for a public purpose (and not being land included in the previous dot point) unless the claim matured by 31 October 1977.
- any other Crown land unless the claim matured by 19 July 1982.
For the purposes of the above, a claim against the Crown will have ‘matured’ if, before the relevant cut-off date, there was a period of adverse possession for at least 60 years.
See section 13.1 Crown Lands Management Act 2016. See also section 45D Real Property Act 1900.
Possession against private ownership
If making a claim after 1 January 1971, adverse possession must be proven for a period of 12 years against a common law owner (see section 27 Limitation Act 1969).
The effect of adverse possession is to destroy the title of the person who is dispossessed. However, it does not destroy the rights of other persons who have an enforceable interest in the land such as easements or restrictive covenants.
More information
See our Land dealing information on Torrens Title Possessory Application forms.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: March 2025