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Darren Kruse
Darren Kruse, Solicitor
Category: Australia Law
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This is a legal question. If a section of my legal land from

Customer Question

This is a legal question. If a section of my legal land from the title office is given permission for a neighbour to use, can the section of that land become the property of my neighbour over a certain number of years ? If so what period of time ? Can the "fence line" be shifted automatically over a prolonged period of occupancy?.
I believe this practice is applicable in Victoria. Please advise if this is true.
Submitted: 3 years ago.
Category: Australia Law
Expert:  Darren Kruse replied 3 years ago.

section52 :

Hi, this question is grossly underpriced, but it's an interesting archaic remenent of English Law so I'll be brief.

section52 :

As you are offline, I'll switch this out of interactive Q&A mode.

Darren Kruse, Solicitor
Category: Australia Law
Satisfied Customers: 16
Experience: Practising in in Personal Injury, Workcover, Civil Disputes, Family, Wills and Estates and Criminal law.
Darren Kruse and other Australia Law Specialists are ready to help you
Expert:  Darren Kruse replied 3 years ago.
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Expert:  Darren Kruse replied 3 years ago.
Sorry - meant to say switch out of interactive chat mode to Q&A mode.

If by "become the property of your neighbor", you mean

can a prescriptive easement be granted over your property by the application of the doctrine of lost modern grant ? - then the answer is Yes, in certain circumstances.

Prescription is the acquisition of a right by reason of lapse in time. Easement by prescription creates an additional incorporeal right which is superimposed on the title of the servient tenement, but it does not extinguish the landowners title

Criteria for creation of such an easement :
1. uninterrupted right of the use for at least 20 years;
2. use ‘as of right’ – openly and not pursuant to permission;
3. no unity of ownership and possession of the dominant and servient tenements during the 20 year period;
4. permission or acquiescence in the use by the owner of the servient tenement. (ie you)

The difference between “permission or acquiescence” or licence (no easement created) and “as of right” (easement created) depends on:
1. the duration of conduct
2. persistence of conduct, despite sale of land
3. unlimited variety of persons using right of way
4. absence of physical impediments or obstructions
5. knowledge by owners of servient tenements and their failure to prevent use of right of way

In these situations I would generally advise people to:
1) have the land surveyed so you are clear about the fencelines
2) set up either a licence or a permission scheme for the neighbor to continue use your land.
3. consider registering a lease for the piece of land in dispute.

You will find this article "THE FUTURE OF PRESCRIPTIVE EASEMENTS IN AUSTRALIA AND ENGLAND" helpful
http://www.austlii.edu.au/au/journals/MULR/2007/2.html

This recent Victorian case gives a good example of the principles involved:
http://www.austlii.edu.au/au/cases/vic/VSC/2006/262.html

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