Concerned about squatters rights on your property? Also known as adverse possession, squatters rights, are when someone lives on a property they don’t legally own for a long time and can eventually claim ownership of it.
While it might seem odd that someone can just move into a place and later claim it as their own, there are specific rules and rights that squatters have in Australia. In some states, someone can live in a home for 15 years and call it their own.
Curious? We’ll explain squatters rights in each states. We’ll also use a case study by Owen Hodge Lawyers to illustrate how outlandish some scenarios are.
The Real Life Case of a Squatter Who Won Ownership Rights
Here’s the story of Bill Gertos, who used squatter’s rights to claim a house in Ashbury, and ended up legally owning it. Let’s dive into how this property developer managed to do this and how it could have been prevented. Back in 1998, Bill stumbled upon a deserted property in the Inner West area.
The place was left wide open with doors off their hinges, because the elderly tenant had recently passed away. Seeing the opportunity, Gertos moved in, fixed the locks, and began repairing the place.
He rented the house out for nearly two decades until 2017, when the police informed the original owner’s family about the situation. It turns out, the original owner had moved away from the property after World War II.
The family, feeling robbed of their rightful property, took issue with Gertos when he tried to legally claim the house under the laws of ‘adverse possession’ or squatter’s rights.
“Adverse possession, a concept from common law, lets someone own a property if they’ve lived there for a certain period without anyone challenging their stay.“
Since Gertos had lived and rented out the property for over 20 years, the Supreme Court granted him full ownership.
Now, how can a squatter end up owning a place?
For landlords, it’s a nightmare when a tenant overstays their welcome. In New South Wales, according to the Real Property Act 1900, a person can claim adverse possession if they’ve lived in the property for at least 12 years, maintaining actual control over it and intending to own it.
Actual control means physically taking care of the property. In Gertos’ situation, actions like changing the locks, fixing the place up, and paying the bills showed his control. Despite public outcry over the fairness, Gertos met the court’s criteria and is now the rightful owner of the $1.6 million house.
In the end, the judge, Justice Rowan Darke, agreed that Gertos had shown enough proof of investing in the house, paying its taxes, and renting it out, which led to the decision in his favor.
How is it that a squatter can claim ownership rights?
As a landlord, one of the worse things is when a tenant refuses to leave at the end of the lease. In New South Wales, under the Real Property Act 1900, a person can apply to gain the right to adverse possession of the property if they have remained in that same property for a minimum of 12 years.
“During that period, they must have maintained factual possession of the land to the exclusion of others, and demonstrate an intention to possess the property.“
Factual possession requires a level of physical control over the property. In Mr Gertos’ case, actions that indicated his physical control would include changing the locks, repairing the property or paying bills.
Gertos’ conduct, although perceived as vastly unfair by the public, satisfied the requirements of the Court, and he is now the official owner of the $1.6 million home.
In this case, Supreme Court Justice Rowan Darke found Mr Gertos had sufficient evidence he invested money into fixing the home, paid taxes on it, and leased it to rental tenants.
Squatters rights across Australia
- Squatters’ Rights New South Wales: In New South Wales, a person can claim adverse possession of land if they have been in continuous, open, and adverse possession of the land for a period of 12 years. This means that the squatter must have been living on the land without the owner’s permission, and that the owner must have been aware of the squatter’s presence but has not taken any action to evict them.
- Squatters’ Rights Victoria: In Victoria, the period of adverse possession is 15 years. The other requirements are the same as in New South Wales.
- Squatters’ Rights Queensland: In Queensland, the period of adverse possession is 12 years, but it can be reduced to 7 years if the squatter has been paying taxes on the land. The other requirements are the same as in New South Wales.
- Squatters’ Rights Western Australia: In Western Australia, the period of adverse possession is 12 years, but it can be reduced to 6 years if the squatter has been paying taxes on the land. The other requirements are the same as in New South Wales.
- Squatters’ Rights South Australia: In South Australia, the period of adverse possession is 15 years. The other requirements are the same as in New South Wales.
- Squatters’ Rights Tasmania: In Tasmania, the period of adverse possession is 12 years. The other requirements are the same as in New South Wales.
- Squatters’ Rights Australian Capital Territory: In the Australian Capital Territory, the period of adverse possession is 12 years. The other requirements are the same as in New South Wales.
- Squatters’ Rights Northern Territory: In the Northern Territory, the period of adverse possession is 12 years. The other requirements are the same as in New South Wales.
It is important to note that squatters rights are not absolute, and the owner of the land may still be able to evict the squatter even if they have met the requirements for adverse possession. The owner may also be able to claim compensation from the squatter for the use of their land.
The information provided is based on data available as of the publication date. While we strive to present accurate and comprehensive information, there may be information not covered in this article, and the details mentioned are subject to change.
How Do Squatter’s Rights Work?
In order to claim squatter’s rights, a person must meet the following criteria:
- They must have been in continuous, open, and hostile possession of the land for the required period of time.
- They must have been aware that the land was not theirs.
- The owner of the land must have been aware of their presence, but must not have taken any action to evict them.
If a person meets these criteria, they can file a claim with the relevant land registry to have their title to the land registered.
When Did Squatter’s Rights Start?
The concept of squatter’s rights dates back to English common law. It was first codified in Australia in the 19th century.
Possession is 9/10ths of the Law
The phrase “possession is 9/10ths of the law” is a legal maxim that refers to the importance of possession in establishing ownership of property.
In the context of squatter’s rights, this means that a person who has been in continuous, open, and hostile possession of land for a period of time may be able to claim ownership of the land even if they do not have a formal title to it.
How Long Before Property is Considered Abandoned?
There is no one answer to this question, as the definition of “abandoned property” varies from state to state. However, in general, property is considered abandoned if it has been left unoccupied and unmaintained for a period of time. In some cases, the period of time required for property to be considered abandoned may be as short as 12 months.
Claiming Squatter’s Rights
If you believe that you may have squatter’s rights to a piece of property, you should speak to a lawyer to discuss your options. A lawyer can help you to determine whether you meet the criteria for squatter’s rights and can also assist you in filing a claim with the relevant land registry.
How could squatter laws impact you?
If there is a property in your family that has passed through the generations, they may indeed have a very real impact, particularly if there is no official title deed to show that your family members are actually the legal owners. In this case, squatters may very well be able to take legal ownership.
A will is an essential document, particularly in this case, to grant and demonstrate legal entitlement of your beneficiaries to any property you may have in your possession.
Contact Professionals for More Help
Owen Hodge Lawyers is a top tier law firm Sydney residents rely on. Today, the Owen Hodge Sydney law firm provides expert advice in a diverse range of business legal services and personal law matters.
Owen Hodge Lawyers has a team of estate planning professionals who can make sure that this turn of circumstances does not happen to you. Contact them today to organise a consultation on 1800 770 780.
