Supreme Court dispute over three square metres of land

It's not often the old Aussie terms "squatters rights" and "dunny" come up in court. However, these terms were quite liberally thrown around in a recent case, where two people were disputing the ownership of a "dunny lane". (See Hardy v Sidoti [2020] NSWSC 1057.)

Located in Redfern, the dunny lane was situated between two properties, belonging respectively to Mr Hardy and Mr Sidoti. This small throughway was once used by carters to pick up buckets of waste from the outdoor toilets (aka dunnies).

The lane at the centre of this Supreme Court dispute measured only 88 centimetres in width and 3.81 metres in length, making a total of 3.35 square metres of land.

New neighbour claims dunny lane land included in title of property

Mr Hardy bought his Redfern terrace house in 1998, when the dunny lane was no longer in use. In 2002 he removed an old paling fence dividing his property from the derelict lane and incorporated the area into his landscaped backyard. He then converted a section of the old lane into a boutique Japanese-style garden.

In 2018, Mr Sidoti bought the neighbouring property, whose back fence also abutted the dunny lane. In the following year, Mr Sidoti decided he'd like to excavate and landscape his backyard to incorporate the same dunny lane land upon which Mr Hardy had built his Japanese garden.

Mr Sidoti argued that the dunny lane land was included in the title when he bought his property. He put up a new fence, extending his backyard to include Mr Hardy's Japanese garden.

Long-term property owner claims squatters rights over dunny lane land

Mr Hardy took action in the Supreme Court, seeking a declaration that the dunny lane on which his Japanese garden stood was now his land. He argued that he had acquired legal title to the land by so-called "adverse possession", otherwise known as squatters rights.

Under section 27 of the NSW Limitation Act 1969 and Part 6A of the Real Property Act 1900, squatters rights mean that a person may be eligible to acquire legal ownership of land based on continuous possession of the property for 12 years.

Full land ownership awarded under squatters rights

Recognising the homespun nature of the case, in his decision the judge stated: "These proceedings concern two very Australian phenomena - the dunny and the dedication to home improvement."

He ruled that as Mr Hardy had squatted on the land and used it for more than 12 years, he was entitled to orders to recognise ownership. He went on to state that Mr Sidoti had trespassed on the dunny lane which was now Mr Hardy's land.

Legal principles underpinning squatters rights

As Associate Law Professor at University of NSW, Cathy Sherry, told the Sydney Morning Herald, adverse possession requires at least 12 years' occupation of another person's property "without force, without secrecy and without permission".

Adding to this, Patricia Lane, senior lecturer at University of Sydney Law School, told the Herald that the legal principle underpinning squatters rights was "use it or lose it".

Police officer attempts to use squatters rights to steal properties from their owners

The topic of squatters rights received additional public attention in 2020, when Victorian police officer Rosa Rossi attempted to steal houses from their legitimate owners by making use of adverse possession laws.

The police officer's ruse involved identifying vacant houses, having the locks changed, having mail redirected at Australia Post and lying in statutory declarations to local councils and utility companies, claiming that she was acting for the owners.

In September 2020 Ms Rossi was sentenced to four years and six months in prison by the Victorian County Court, for offences including perjury, unlawfully accessing police records and five counts of obtaining property by deception.

She is due to serve two years and four months before she is eligible for parole.

Further information on squatters rights

Further information on squatters rights in NSW can be found in the Tenant's rights manual: a practical guide to renting in NSW on the NSW State Library website.

Before embarking on a squatters rights case, it's best to seek specialist conveyancing advice.

This is because land claims such as the one involved in the dunny lane case are often legally complex and require all sorts of surveys and historic records.

For further information, please see also my earlier article Sydney developer uses squatter's rights to claim ownership of a property in NSW.

Merrill Phillips
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.