Understanding squatters’ rights in NSW is essential for property owners, as it directly impacts the legal landscape of unoccupied land. Squatting refers to the act of occupying an abandoned or unoccupied property without the owner’s permission. Under squatters’ rights in NSW, if a registered owner fails to use their land for a continuous period, typically 12 years, they may risk losing their title. This “use it or lose it” principle can allow a squatter to claim legal title to a property, provided they can demonstrate actual or intended possession.
For property owners, it’s crucial to be aware of squatting laws in NSW, particularly regarding tenants claiming squatters’ rights. If a tenant has occupied a property, they might assert squatters’ rights in NSW if the conditions are met. This poses significant challenges, especially when it comes to removing squatters from private property in NSW, which can be a complex legal process. This guide will further explore squatters’ rights and the relevant squatting laws in NSW, equipping property owners with the necessary knowledge to protect their interests.
What is adverse possession & how does it work?
Squatters’ rights and property owners’ rights differ significantly in key areas. Squatters can claim ownership through adverse possession after occupying a property for a specified period (usually 12 years in NSW) without the owner’s permission. In contrast, property owners hold legal title, allowing them to control and manage their property and take action against unauthorized occupants.
For squatters to establish their rights, they must demonstrate continuous and open occupation, while property owners risk losing their rights if they neglect their property. If squatters meet the legal requirements, they can acquire ownership, potentially overriding the owner’s claims. Conversely, owners can initiate eviction proceedings, but successful squatter claims can complicate this process.
Squatting laws in New South Wales (NSW)
Understanding the nuances of the two most important squatting laws is crucial for both property owners and those facing potential claims, as these laws can have significant implications on property rights in NSW.
Limitation Act 1969 (NSW)
In NSW, the Limitation Act 1969 outlines the period required for establishing possession claims. For private land, squatters can potentially claim ownership after occupying the property for twelve years, while for Crown land, the period extends to thirty years. This legal framework highlights the importance of timely action for property owners to address unauthorised occupations before squatters can solidify their claims.
Real Property Act 1900
Under the Real Property Act 1900 in NSW, Section 45C addresses how squatters can acquire possessory title to land. It states that, generally, a person cannot gain ownership of land simply by occupying it for a certain period if it goes against the rights of the registered owner. In other words, even if someone squats on a property for a long time, they cannot automatically claim title just based on their occupation.
However, the Act does allow for some exceptions. If a squatter occupies land before it is officially registered, they may be able to claim a limited title under certain conditions outlined in the Act. This means that while squatters face significant barriers to claiming ownership, there are specific situations where their claims might still be recognized.
Case Study: Tenants claiming squatters rights NSW
In this post, we look at the seemingly outlandish case of Bill Gertos, who claimed squatters’ rights on a property in Ashbury and was ultimately granted possession of it. How did this property developer get away with it, and equally as important, how could this situation have been avoided?
In 1998, Bill Gertos came across the abandoned Inner West property, finding the doors unhinged and the house completely open. The home had in fact been leased by an elderly woman who passed away that same year. Upon his discovery, Gertos decided to take possession of the property, change the locks, and commence restoration work.
He had been renting the home out for close to 20 years when the family of the original owner was notified by police of the situation in 2017. The original owner had moved out of the property post-WWII.
Annoyed at missing out on the property that they were entitled to, the existing beneficiaries challenged Mr Gertos when he applied for ownership rights to the Registrar-General under the existing squatter laws or ‘adverse possession’ laws.
Adverse possession was developed under common law (court-made law) and allows a person to gain title to a property if they have remained in that same property for a certain amount of time and nobody has disputed their possession.
Seeing as Mr Gertos had been habituating and renting the property for over 20 years, the Supreme Court awarded him full ownership.
How is it that a squatter can claim ownership rights?
In New South Wales, under the Real Property Act 1900, a person can apply to gain the right to adverse possession of the property if they have remained in that same property for a minimum of 12 years. During that period, they must have maintained factual possession of the land to the exclusion of others, and demonstrate an intention to possess the property.
Factual possession requires a level of physical control over the property. In Mr Gertos’ case, actions that indicated his physical control would include changing the locks, repairing the property or paying bills. Gertos’ conduct, although perceived as vastly unfair by the public, satisfied the requirements of the Court, and he is now the official owner of the $1.6 million home.
In this case, Supreme Court Justice Rowan Darke found Mr Gertos had sufficient evidence he invested money into fixing the home, paid taxes on it, and leased it to rental tenants.
Removing squatters from private property
- Regularly inspect & maintain property
To protect your property from squatters, implement strong security measures like fencing and locks. If your property will be vacant for an extended period, conduct regular checks to ensure maintenance and deter unauthorized use. Early detection of unauthorised occupation is essential. If you notice signs of squatting, act quickly to prevent squatters from establishing continuous possession, which could lead to an adverse possession claim. As a property owner, you can issue a notice of trespass to inform squatters they must vacate immediately. Additionally, while defending your property rights, it’s important to respect the personal belongings of squatters. Seizing their property could result in legal complications, such as theft allegations. - Lodge property caveats
For a more formal resolution, applying to the Supreme Court for an interim possession order can effectively halt their claim. In addition to issuing notices of trespass and applying for interim possession orders, property owners in NSW can utilize other legal actions, such as filing a caveat, to help remove squatters. A caveat serves as a formal notice lodged with the land registry, indicating that someone has an interest in the property, which can prevent any dealings or transactions until the matter is resolved. This action effectively alerts potential buyers or lenders that the property is disputed, providing an additional layer of protection for the owner. By lodging a caveat, property owners can strengthen their position against squatters and deter any attempts to establish adverse possession while they pursue more permanent legal remedies.
Consult With Expert Property Lawyers
If there is a property in your family that has passed through the generations, they may indeed have a very real impact, particularly if there is no official title deed to show that your family members are actually the legal owners. In this case, squatters may very well be able to take legal ownership.
A will is an essential document, particularly in this case, to grant and demonstrate legal entitlement of your beneficiaries to any property you may have in your possession.
Owen Hodge Lawyers has a team of property lawyers who can make sure that this turn of circumstances does not happen to you. Contact us today to organise a consultation on 1800 770 780.
Head to the Owen Hodge blog if you want to learn more. We explain legal jargon, such as conveyancer vs solicitor and barrister vs solicitor, as well as discuss things like if you resign what are you entitled to and ‘pain and suffering’ compensation payout amounts.