Inner Metropolitan Melbourne is criss-crossed with old laneways serving the rear of residential properties. These laneways were often part of original 19th Century subdivisions. Their purpose was to allow horse-drawn carts to collect the night soil (or untreated sewerage) from the rear of affluent middleclass residences before the days of septic tanks.
Many examples can be seen in suburbs like Fitzroy, Collingwood, Richmond, Carlton, Moonee Ponds, Essendon, Prahran and Brunswick.
Many of these old laneways are now disused. Many have been the subject of de facto adverse possession by adjoining landowners who have extended their backyards. Such claims for adverse possession may be sufficient, provided that the possession of the old laneway contiguous to the owner’s land is both adverse and continuous for a period of at least 15 years, to acquire title to that portion of laneway. This will only be possible, however, if the landowner can show that the proprietor of the laneway was the developer who originally subdivided the land in the late 19th or early 20th Centuries.
Difficulties will arise if the council can establish that the laneway originally vested title in it or that subsequently, the council was able to acquire title by making application to Land Use Victoria to become registered proprietor under the Local Government Act. The Transfer of Land Act will not allow adverse possession claims against land owned by councils.
Accordingly, owners of land which have annexed old laneways without having yet commenced adverse possessory title applications are well advised to lodge caveats on the laneway land title to prevent the local council from making application to become registered proprietors. The reason councils are making such applications is to force the adjoining landowners to pay a price to annex the rear laneway. Otherwise, the adverse possession claim will not involve any payment to a council because it will proceed upon the basis that the land was owned by the original developer.
A further complexity is that the laneway might be a public highway at common law because it had been open to the public and used without force, secrecy and without permission for a lengthy period – at least in excess of 30 years.
If the laneway is a public highway, it cannot be extinguished by adverse possession. Accordingly, a laneway which, for instance, connects two streets or roads and is used either by the owners abutting onto it but also to through-traffic may well be a public highway at common law.
One positive result of such an occurrence is that a public highway will extinguish private easements or private rights of way over the laneway. Accordingly, if the council does decide to sell the laneway/public highway to adjoining rear property owners, then purchasers will take those additional land ownership rights free from any old (and possibly forgotten) easements over the section of laneway being transferred.
This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
For any further information concerning this article, please contact Michael Pickering, Principal, or Josephine Ziino, Judicate Lawyers – Barristers and Solicitors of Unit 11 / 233 Cardigan Street, Carlton, Victoria, 3053. Contact details are as follows: