Squatters rights in Australia have been in the spotlight in recent years.
If a squatter has had possession of a property for a continuous period of 12 years or more, they may be able to claim adverse possession. That is why it is important for landlords and tenants to be aware of their rights and obligations.
What is a squatter?
A squatter is a person who resides in or uses an empty, unused, or abandoned area or property. A squatter may legally enter a building through an unlocked door.
However, it is illegal for them to remain there after the registered owner or legitimate occupant requests them to leave. A person who unlawfully resides or enters a property without the owner's permission is also known as a trespasser.
What are squatters' rights?
Squatters' rights are the legal concept that a person may obtain legal title to a privately owned land if they have been in possession of the property for a continuous period of 12 years.
If the land is owned by the crown this means that the person must have had continuous possession for 30 years.
Adverse Possession Laws
When making an adverse possession claim for legal title of a property, you must be able to show that your possession of the property was 'open, not secret; peaceful, not [taken] by force; and adverse [to the interests of the owner], not by consent of the true owner'.
To succeed in an adverse possession claim you must claim that the property was taken:
- without forceful means; or
- In a manner that was not considered an attempt to conceal possession; or
- With the consent of the registered owner.
An adverse possession claim can be supported by:
- A land survey conducted by a licensed surveyor
- Declaration from the applicant including changed locks. repairs or proof that the land has been leased to other people
- The witnesses attesting to the nature and scope of the occupation
- A Land valuation
- Giving notice to anybody who has an interest in the land
How to stop squatters' rights?
The most effective way to stop squatters is to secure your property with fences, locks and other security measures. This is because any unlawful entry to a property will be considered trespassing and will prevent a squatter from later claiming adverse possession.
Checking on unoccupied properties can also prevent squatters.
The owner can issue a notice of trespass to squatters. You can also apply for an interim possession order at the Supreme Court which prevents squatters from claiming adverse possession.
What is Possession in Property Law?
Possession in property law is when a person has sole occupation of a property. This occurs when the real and legal owner has vacated the property.
When a squatter enters an abandoned piece of land, ownership of the property shifts in their favour.
However, the landowner may take action to reclaim it, such as establishing a way of entry or vacating the squatter.
Secondly, the squatter must demonstrate that they intended to be the sole owner of the property from the moment they first possessed it. Squatters are not required to provide evidence of their belief that they were the rightful owners of the land.
Squatters Rights: Adverse Possession Claims Time Limits
The time limits for adverse possession claims are:
- Queensland (QLD):12 years
- New South Wales (NSW): 12 years or a claim to Crown land is 30 years
- Victoria (VIC): 15 years
- Tasmania (TAS): 12 years
- South Australia (SA): 12 years
- Western Australia (WA): 12 years
- Australian Capital Territory (ACT): Adverse possession is not covered in ACT's land laws
- Northern Territory (NT): Adverse possession is not covered in NT's land laws
Squatters Rights Cases
Hardy v Sidoti (2020)
The case of Hardy v Sidoti (2020) involved two neighbouring houses in Redfern, Sydney. Mr Hardy, the plaintiff, had enclosed a portion of a former "dunny lane" (ie. alley originally designed as access for waste collectors from each terrace's outhouse) between the two properties and used it as his own garden.
Mr. Hardy purchased his home in 1998. In 2002, he demolished his back fence and created a Japanese-style garden between his property and the neighbouring one. Mr Sidoti bought the adjacent land in 2018, with the disputed land included on the title.
Mr Hardy then took his concerns to the Supreme Court, claiming that the dunny lane where his garden was located now belonged to him. Additionally, he argued that through adverse possession, he had obtained legal title and rights to the property. Mr. Hardy succeeded in his claims.
Mcfarland v Gertos (2018)
In McFarland v Gertos (2018), an elderly woman who had been renting a house had passed away that year. Upon making this discovery, Mr Gertos decided to claim legal ownership of the property. As the property developer, he changed the locks and began the restoration process.
In 2017, the police notified the deceased's family that Gertos had been renting out the house for nearly 20 years. The current beneficiaries opposed Gertos' application for adverse possession. However, under common law, Mr Gertos provided sufficient evidence to support his claim to the property and the court ruled in favour of Gertos, declaring him the true owner of the deceased's house.
When is squatting illegal?
Squatting is illegal when the squatter enters the property by committing an offence such as trespassing or break and enter. Each state has its own specific laws in relation to this.
Squatters Rights New South Wales
An adverse possession claim can be made against an owner after 12 years in NSW pursuant to section 27(2) of the Limitation Act 1969. A claim of adverse possession must be made to the NSW Land Registry Services.
However, if the land is Crown (government owned) land, it must be proven for a period of 30 years commencing from 1 January 1970. Where the possession commenced prior to 1 January 1970, a period of possession of at least 60 years must be shown.
A squatter can be charged with criminal offences if they enter the property unlawfully. The most common offences are enter inclosed lands under the Inclosed Lands Protection Act 1901 and break and enter under the Crimes Act 1900.
Squatter Laws in Victoria
In Victoria, an adverse possession claim can be made after residing in a property for 15 years pursuant to section 8 of the Limited of Actions Act 1958. Any application must filed with Land Use Victoria and lodged with the Registrar of Titles.
Squatters in Victoria can be charged with the criminal offence of trespass which is punishable by a maximum penalty of 6 months imprisonment or 25 penalty units under section 9(1) of the Summary Offences Act 1966.
You can also be charged with offences such as home invasion under the Crimes Act 1958 which carried a maximum penalty of 25 years imprisonment.
Squatters Rights in Queensland
An adverse possession claim can be made in Queensland after squatting for 12 years pursuant to section 13 of the Limitation of Actions Act 1974. Any claim is filed with Titles Queensland. No claim can be made on Crown land.
In Queensland, a squatter can be charged with trespass if they enter a property illegally or refuse to leave when requested pursuant to section 11 of the Summary Offences Act 2005 (Qld). The maximum penalty is 1 year imprisonment and/or a fine of 20 penalty units.
The Criminal Code Act 1899 (QLD) also creates offences relating to break and enter (Section 421) and enter dwelling with intent.
Squatters Rights Tasmania
You can file an adverse possession claim in Tasmania after 12 years pursuant to section 10(2) of the Limitation Act 1974 (Tas). If it is Crown land, you must wait 30 years. An application must be made to the Land Titles Office which will result in the officer of the Recorder assessing evidence to determine whether the claim can proceed.
In Tasmania, if a squatter trespasses into a dwelling-house, they can be subject to a maximum penalty of 12 months imprisonment and/or a fine of 50 penalty units. They can also be charged with burglary under Section 244 of the Criminal Code Act 1924 (Tas) if a squatter enters any place as a trespasser, or by threat, artifice, or collusion, with intent to commit a crime they are liable to a maximum penalty of 21 years imprisonment.
Squatters Laws South Australia
In South Australia an adverse possession claim can be made after 15 years under section 4 of the Limitation of Actions Act 1936 (SA). If the land is Crown land, the period increases to 60 years. A 'Part 7A Application' must be made to Land Services SA.
Squatting is a criminal offence in South Australia when a squatter commits the offence of trespass to enter property. Under section 17A of the Summary Offences Act 1953 (SA), they will also be committing this offence if they refuse to leave when asked by an authorised person. Trespass is punishable by a maximum penalty of a $2,500 fine and/or 6 months imprisonment.
Squatters Laws Western Australia
Under section 19 of the Limitation Act 2005 (WA), an adverse possession claim can be filed after 12 years in Western Australia to the Registrar of Titles (Landgate). You can also apply to the Supreme Court of Western Australia if there is an objection to a Landgate application. No claim lies against any Crown land. This is outlined in
Squatting is illegal in Western Australia if a person is in a place without the consent of the owner or occupier or remains after being asked to leave. Under section 70A of the Criminal Code Compilation Act 1913this carries a maximum penalty of 12 months imprisonment and/or a $12,000 fine.
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.
