Introduction

Owners of land have various rights over their land. Owners can sell, lease, build on, occupy, and exclude others from entering it. Each of these rights protect the landowner’s interest in the land.

But can squatters challenge these rights, or even assume ownership of land? What are squatters’ rights, and what actions may be taken against a squatter?

Squatters Rights: What Is It?

‘Squatters’ rights’ is a colloquial term for adverse possession. Adverse possession refers to the process where a squatter obtains legal title (i.e. ownership) over another’s land, without the owner’s permission. Usually, the land has been abandoned.

The person (i.e. the squatter) making an adverse possession claim must be in possession of the entire property for 12 years,1 or 30 years if the land is Government owned. During this period, the person must have ‘factual possession’ of the land, to the exclusion of others and show an intention to possess the property. Factual possession refers to the physical control of a property, and which can be evidenced by:

• changing locks;

• making repairs;

• paying rates and taxes; and

• making improvements to the property.

A claim for adverse possession was made in McFarland v Gertos [2018] NSWSC 1629. In this case, Bill Gertos discovered an abandoned and derelict property while visiting a client on the same street. Upon finding the back door open, Gertos decided to occupy the property, which he did for the next 19 years, before making an adverse possession claim. The property was originally owned by Henrey Downie, who died without a will.

Gertos’s application led to a daughter and two grandchildren of Downie commencing proceedings against Gertos in the Supreme Court of New South Wales (‘Court’), seeking orders to be declared the owners of the property. However, The Court found in favour of Gertos. The Court held that Gertos had maintained factual possession, to the exclusion of all others. He had done so in an “open, not secret; peaceful, not by force; and adverse, not by consent of the true owner”. The Court held that nothing would prevent Gertos from becoming the true owner of the land.

Not all adverse possession claims are successful. For example, in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 a property developer attempted to use adverse possession to gain ownership of a small parcel of land, owned by Tracey Higgins. The developer had begun using the land in 2014 to access a nearby site, after Higgins moved away, leaving the property vacant. The Court did not accept the adverse possession claim, because the developer failed

to meet the necessary requirements. For example, the developer failed to prove exclusive

possession of the property, because nearby residents used the area for dog walking, biking, and other recreation. Additionally, the developer failed to show they had possessed the property for over 12 years.

What Actions May Be Taken Against Squatters?

Although adverse possession claims are difficult to succeed in, the cases above demonstrate how landowners need to demonstrate active involvement in their properties to avoid losing possession of them. What can landowners do to prevent an adverse possession claim being made against them?

• Carryout regular inspections and maintain the property. The property should be secured with fencing and locks. Repairs should be made. If the landowner plans to leave the property vacant for a lengthy period, they should seek assistance by a trusted third-party or hire personnel to regularly check the property for squatters.

• If squatters begin occupying the property, a notice of trespass should be immediately issued to the squatters.

• Lodging caveats. If a squatter makes an adverse possession claim, or attempts to sell the property, a caveat will alert third parties that the property is disputed. Until the caveat is lifted, the property is protected, allowing the owner to pursue a permanent solution.

Key Takeaways

Landowners are in a ‘use it or lose it’ situation. If landowners abandon, or leave their land vacant, a squatter may take advantage of the land and claim adverse possession. The law requires landowners to proactively use their land and does not protect those who fail to do so.

However, there are various solutions that may assist landowners in protecting their interests and assets from squatters.

Footnotes

[1] Real Property Act 1900 (NSW) s 45D; Limitation Act 1969 (NSW) s 27(2)