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Some of us have heard the phrase “squatters’ rights” or heard stories of people taking possession of properties they are not the legal owner of.
Given this, it is worth considering how ownership of abandoned property in NSW is recognised, using these elusive “squatters’ rights”, and what criteria must be met to satisfy such a claim of ownership?
In NSW, a person may be able to obtain legal title to privately owned land if they have been in possession of said property for a continuous period of 12 years.
In the case of land owned by the Crown, including any easements, this extends to a period of 30 years.
This timing threshold varies for each State and Territory. In Victoria a party must maintain continuous possession of the property in question for a period of 15 years to bar the registered owner’s title to it.
“Squatters’ rights” at law is termed “adverse possession”.
In 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’.
This means, you may not succeed in any adverse possession claim if you took possession of the property:
1. By forceful means. For example, by physically evicting the owner; or
2. In a manner which may be considered an attempt to conceal possession; or
3. With the consent of the registered owner. For example, if the owner allowed you to occupy the property for a period.
If you were to take possession of a property by force (for example, by breaking the window to gain access or physically evicting the owner) the law of trespass is seen and may amount to unlawful behaviour contradicting any claim for adverse possession.
If you are possessing a property prior to the expiration of the limitation period, your continuous period of possession may be interrupted and whereby the accrual of the statutory limitation period is halted. This may occur, for example, if the registered owner of the property actively attempts to evict you from the property or takes steps to maintain the property and possess it.
In taking possession of a property that you are not the legal owner of, you must also hold an intention to possess the said property and be able to prove such intention.
In McFarland v Gertos, the Supreme Court of New South Wales granted Mr Gertos’ application for adverse possession.
Mr Gertos sought to have the court determine his intention to possess the property he had possession of and had taken steps to possess the property to the exclusion of everyone else.
This intention was established by his actions such as changing the locks, carrying out works on the property, and renting the property to a tenant.
In addition to these actions, Mr Gertos made it clear that he was exercising his rights as a squatter. He was paying land tax and other rates associated with the property and disclosed his possession of the property in Family Law Court Proceedings he was involved in.
In evidence from McFarland v Gertos, the Court ruled that the requirement of adverse possession of a person claiming it, did not have to physically occupy the property but have control of it. In Gertos, entering a lease and arranging a managing agent for the property was sufficient to show his intention to possess the property.
Each claim to adverse possession is very heavily determined on the unique facts and circumstances of each claim and the onus of proving such claim rests in the person claiming the interest in the property. In any event, appropriate enquiry should be made to determine the ownership of any suspected abandoned property prior to any possession action being taken.
If you require legal advice on claiming abandoned property in Australia, contact SLF Lawyers on (02) 9264 4833.
Articolo scritto da Hannah Ricketts of our Sydney office.
