This article will discuss squatters rights in Australia. A squatter is a person who is residing in or using an empty, unused or abandoned area or property. Indeed, housing prices are expensive and not everyone in Australia can afford proper housing for themselves. Hence, some people may squat in an area for a long time without proper guidance or help.
A squatter may lawfully enter a building, for example, through an unlocked door. However, it is unlawful for them to remain there after the building's registered owner or legitimate occupant requested them to leave. A person who unlawfully resides or crosses a property without the owner's permission is referred to as a trespasser. Read on to know more about squatter's rights in Australia.
Adverse Possession Laws
Did you know that if squatters are able to live in an abandoned property long enough, they may legally claim it? This type of possession is referred to as adverse possession. In NSW, a person seeking adverse possession must first have 12 years of exclusive use of the property in order to make such a claim for adverse possession.
There may be reasons for the restriction period to be extended in some unusual situations. However, most squatters don't occupy a property with the intent of taking possession of the same property later. They only squat on land owned by other people because they may have no other place to live.
According to adverse possession laws, a landowner has a responsibility to use, protect, and maintain their property. The law considers the original owner to have lost their right to maintain the land if it is abandoned for a protracted length of time. Squatters rights laws vary from state to state but here are the common criteria in Australia for adverse possession:
- The claimant must have been in actual, unrestricted, and continuous physical control of the land for a period of 12 years
- The property was open and unguarded, leading one to believe the claimant was the rightful owner
- Claimants had factual possession on the land or property without force or violence
- Claimants possessed the land or property with no easements or caveats
- The claimant made it clear that they wanted to own the property
The following evidence may support an adverse possession claim when talking about squatters rights:
- A licensed surveyor conducting land survey
- The applicant's declarations such as changed locks on structures, repairs, paid bills, or the land has been leased to others
- The witnesses attesting to the nature and scope of the occupation
- Land valuation
- Giving notice to anybody who has an interest in the land
Elements of Possession
Possession comprises two main components when talking about squatters rights. In property law, first and foremost, the claimant must have the sole occupation of the property. For this to occur, the real and legal owner must have left the property. The moment a squatter enters an abandoned piece of land, ownership of property shifts in their favour.
However, the landowner may take considerable action to reclaim it, such as, a way of entry or expelling the squatter. Secondly, the squatter must demonstrate that they intended to be the only owner of the property from the moment they first possessed it. Squatters do not need to provide evidence of their belief that they were the rightful proprietors of the land.
Squatters Rights: Adverse Possession Claims Time Limits
| State | Time limit made against an owner | Where to make a claim |
| Queensland (QLD) | 12 years | Titles Queensland |
| New South Wales (NSW) | 12 years A claim to Crown land can be made after 30 years |
NSW Land Registry Services |
| Victoria (VIC) | 15 years | Land Use Victoria |
| Tasmania (TAS) | 12 years | Land Titles Office |
| South Australia (SA) | 12 years | Land Services SA |
| Western Australia (WA) | 12 years | Registrar of Titles |
| Australian Capital Territory (ACT) | Adverse possession is not covered under land law in ACT's land laws | N/A |
| Northern Territory (NT) | Adverse possession is not covered under land law in NT's land laws | N/A |
Squatters Rights: Case Examples
1. Hardy v Sidoti (2020)
The case of Hardy v Sidoti (2020) involved two adjacent houses in Redfern, Sydney. Mr Hardy, the plaintiff, had for many years enclosed a portion of a former "dunny lane" and utilised it as his own garden. A dunny lane is an alley designed as an access point for people who collect waste/trash from each terrace's outhouse.
Hardy had acquired the home in 1998. Then, in 2002, he demolished his back fence and created a Japanese-style garden between his home and the one next door. Mr Sidoti, the unsuccessful claimant, purchased the adjoining land in 2018, and the land in question was included on the land title.
Mr Hardy then escalated his concerns to the Supreme Court. He stated in his lawsuit that the dunny lane where his Japanese garden was located is now his property. Furthermore, he also claimed that through "adverse possession", he had obtained the legal title and right to the property. Hardy was successful in his claims.
2. Mcfarland v Gertos (2018)
Our second case McFarland v Gertos (2018) , also involved squatters rights. Bill Gertos discovered an abandoned property with open doors in 1998. The elderly woman who had been renting the house had actually passed away that year. Gertos decided to take legal ownership of the property after making his discovery. Hence, as the property developer, he changed the locks and started the restoration process of the house.
In 2017, the police informed the family of the deceased that Gertos has been renting out the house for nearly 20 years. The current beneficiaries opposed Gertos' application for adverse possession since they were upset about losing the property to him. However, under common law, Gertos had presented enough evidence to claim the property.
Hence, the court awarded Gertos to be the true owner of the deceased's house. This is an important lesson for beneficiaries, as they are required to immediately secure an inherited property following the death of their loved one. If the beneficiaries acted quickly, they may have legally obtained the property for themselves. This is why Wills are also important in securing assets and properties and making provisions for beneficiaries.
Importance of Seeking Legal Advice
In our highlighted cases, both squatters were successful with their claims. However, not all cases end with successful outcomes, and property owners and squatters may fall into a dispute about property matters.
JB Solicitors can act both for property owners and squatters who want to claim a property or piece of land. Our seasoned lawyers can also help with other legal matters relating to property and Wills and Estate Planning.
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.
