Squatting is the act of using empty, disused and abandoned property. If a squatter meets certain requirements, they can claim title to the property after a certain amount of time under the law of adverse possession, or what are known as “squatters’ rights”.
Squatters’ rights operate to deal with overlooked land where the original owner has been dead or absent for a long period. The theory of the law of adverse possession involves an obligation for an owner to use, maintain and defend land. If the land is neglected for a long period, the law considers that the original owner has forfeited their right to keep it.
Laws for adverse possession vary between the states and territories but there are general criteria which must be met:
- the claimant must have had exclusive, open and factual possession of the land without consent for a continuous number of years;
- the possession was open and no secret, so that an outsider would assume the claimant had ownership of it;
- the possession occurred peacefully i.e. without force or violence;
- the claimant showed an intention to possess the land.
Evidence that must accompany a claim for adverse possession includes:
- a survey of the land by a licensed surveyor;
- declarations by the applicant and witnesses that testify to the nature and extent of the occupation;
- a land valuation;
- the giving of notice to anyone with an interest in the land.
The declarations can include proof of changing locks on buildings, making repairs to property, paying bills and rates, or leasing the land to others.
An adverse possession claim can be made against an owner after 12 years. A claim is made to Titles Queensland.
New South Wales
An adverse possession claim can be made against an owner after 12 years. A claim to Crown land can be made after 30 years. A claim is made to the NSW Land Registry Services.
McFarland v Gertos 
The recent case of McFarland v Gertos put squatters’ rights in the national spotlight. In 2018, the NSW Supreme Court awarded ownership rights to a property developer who took possession of a vacant and derelict 3-bedroom home he found in Sydney in 1998. Bill Gertos repaired and renovated the home, then leased it out. The property had sat empty since its last tenant died that same year. The relatives of the last-listed owner challenged Mr Gertos’s claim, arguing they were unaware they were entitled to the property, until they were contacted by police in 2017. They claimed the property was never abandoned. The judge found: “Mr Gertos succeeded in taking and maintaining physical custody of the land, to the exclusion of all others, and he has assumed the position of a landlord.” Mr Gertos, who spent more than $140,000 on the property, sold it in 2020 for $1.4 million.
The Limitations of Actions Act 1958 provides that an adverse possession claim can be made against an owner after 15 years. It also states such a claim cannot be made over Crown land, rail track, water authorities, council land or common property. A claim is made to Land Use Victoria.
An adverse possession claim can be made against an owner after 12 years. A claim is made to the Land Titles Office.
An adverse possession claim can be made against an owner after 12 years. A claim to Crown land can be made after 60 years. A claim is made to Land Services SA.
The claimant must show possession of the land for at least 12 years, or in some cases at least 30 years where the registered owner has a disability.
An application is made to the Registrar of Titles (Landgate), or via proceedings in the Supreme Court where there is an objection to a Landgate application.
Australian Capital Territory
Adverse possession is not part of land law in the ACT.
Adverse possession is not part of land law in the NT.
Disputing a claim
The onus of proof is on the applicant claiming squatters’ rights to show adverse possession on the balance of probabilities. The registered owner of the land can lodge a caveat over the land and raise facts to disprove the claim, such as evidence of re-entering the land, ordering the applicant to leave the land, or removing a fence or building during the period of occupation. The best evidence is written acknowledgement that the person is occupying the land under an agreement.
For advice or representation in any legal matter, please contact Armstrong Legal.