Adverse Possession: A Tool for Normalising Strata Property

The doctrine of adverse possession enables a person in occupation of land without title to that land to ultimately become its legal owner. This doctrine has traditionally resolved uncertainty where land has been possessed openly, continuously and to the exclusion of the ‘true’ or registered owner, despite the absence of any formal transfer of title.

Over the last two decades, we have seen the doctrine applied to boundary and ownership disputes between neighbours in strata or survey-strata schemes, particularly where strata plans or by-laws leave the position unclear.

Adverse Possession

Unless there is evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land with a prima facie right to possession. Under section 68(1) of the Transfer of Land Act 1893 (WA) (TLA), once a person registers their title at Landgate, that person obtains what is known as ‘indefeasibility’ or an ‘indefeasible’ title.

Adverse possession operates as an exception to indefeasibility, allowing a person in possession of land without legal title to extinguish the registered owner’s title. 

Establishing adverse possession in WA requires:

1. ‘actual possession’, which involves demonstrating that a person has factually possessed the land, and that they intend to possess the land; 
2. existence of actual possession for 12 years; and
3. that the possession is “observable and exclusive”, “peaceful”, “open”, “continuous” and importantly, “adverse to the rights of the true owner”.

The right to claim land by adverse possession is not directly granted by statute but instead results from the landowner's failure to bring a claim against the possessor within the limitation period of 12 years set by the Limitation Act 1935 (WA).

Under section 222 of the TLA, a person who has successfully claimed legal ownership by the expiry of the statute of limitations can apply to have their ownership registered on title.

 Case Study: Anderson v Stone [2026] WASC 323

1. Rachel Anderson is the registered proprietor of Unit 4 in the apartment complex at 42-44 Brighton Road, Scarborough (being Lot 4 on Strata Plan 15507). Tegan and Daniel Stone are the registered proprietors, as tenants in common, of the neighbouring Unit 5 (being Lot 5 on the same Strata Plan). 
2. The case concerned about 2m² of land situated between Lot 4 and Lot 5 (Claimed Land).
3. The Claimed Land formed part of a passageway strip of land running between the two units from the common driveway, to the rear courtyard of Lot 4.
4. In 2025, Anderson successfully claimed adverse possession over the majority of the passageway strip of land between Lot 4 and Lot 5 by application under section 222 of the TLA. However, the additional 2m² of Claimed Land was excluded from the 2025 application following multiple requisitions by Landgate. 
5. Anderson made a claim in the WA District Court for adverse possession of the Claimed Land and sought that the Claimed Land be amalgamated into her Lot 4.

Use of Claimed Land

1. Anderson had used the Claimed Land exclusively for over 17 years. The Claimed Land included gas and electricity metre boxes which were present when she bought Lot 4 in 2008 and a solar-powered control box which she installed in 2011. None of these utilities serviced Lot 5. The Claimed Land also served as the only access to her rear courtyard. 
2. Anderson submitted that she had continuously used the Claimed Land since she moved into Lot 4 in 2008 and it was an integral part of her property. She claimed that she:
   1. openly walked over the Claimed Land to carry rubbish and garden waste to the common rubbish site; 
   2. stored gardening and BBQ tools on the Claimed Land; and
   3. asked tradespeople to traverse over this area when carrying out works on the Claimed Land.
3. The Stones’ did not dispute the facts, nor did they oppose Anderson’s application. 

Court’s reasoning 

1. Adverse possession has previously been recognised in WA as a valid legal action which can arise in strata and survey-strata schemes. Arguments that such claims are inconsistent with the Strata Titles Act 1985 (WA) have since been rejected.
2. In this case, the Court considered whether Anderson’s use and control of the Claimed Land since May 2008 satisfied the elements of adverse possession for the relevant 12‑year limitation period.
3. The Court held that Anderson had factual possession and the requisite intention to possess because she treated the Claimed Land as part of her home from May 2008 onwards.  She used the Claimed Land as the only access to her rear courtyard, for the purposes of storing equipment, installing fixtures and directing tradespeople to use and improve the land. This amounted to exclusive control. 
4. Anderson’s possession was “open, peaceful and adverse” and her continuous use was visible and unchallenged. 
5. The Court found no evidence that the Stones or their predecessors ever authorised Anderson’s use of the Claimed Land. The fact that of none the utilities located within the Claimed Land serviced Lot 5 supported Anderson’s claim of exclusive possession.
6. It was held that Anderson had absolute title to the Claimed Land and an order was made to amalgamate the Claimed Land into Lot 4 (with an updated strata plan to be lodged at Landgate).

Practical Implications 

Adverse possession is an exception to a landowners’ indefeasible title.  In WA, it requires a person to demonstrate ongoing and open possession of land without the consent of the landowner, for 12 years. 

This case is a timely reminder to consider how owners and occupiers use common property and or other land in strata and survey-strata schemes, and whether that land should be transferred or re-classified before claims for adverse possession arise.

For further advice on adverse possession or strata property matters, please contact our Property team.

Bianca McGoldrick and Sinead Spencer

1. ^

   Dwyer v Jecks [2026] WASC 2, [16] citing Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163, 167 per Murray J and Bowman v Tremaine [2016] WASC 294 [30].

2. ^

   Payne v Dwyer [2013] WASC 271 [64].

3. ^

   Limitation Act 1935 (WA) sections 4, 5, 14 and 30; Limitation Act 2005 (WA) sections 4, 19(1) and 75.

4. ^

   Anderson v Stone [2026] WASC 323 citing Ben-Pelech v Royle [2020] WASCA 168 [53] (Murphy, Beech & Vaughan JJA).

5. ^

   Above at 2. 

6. ^

   Noting, that in the alternative, Anderson sought an easement over the Claimed Land in her favour.

7. ^

   See Abdullah v The Owners of Sandra Court Welshpool Strata Plan 9437 & Ors [2001] WADC 62.

8. ^

   See Abdullah v The Owners of Sandra Court Welshpool Strata Plan 9437 & Ors [2001] WADC 62; John Gladstone, ‘Adverse possession of common property in strata/survey-strata schemes’ (13 October 2005).