Can a Squatter Claim Title to a Property? The laws of adverse possession

by The FindLaw Team

It doesn’t take a degree in economics to realise that housing prices in Australia is rather expensive. How about that for a classic bit of understatement! As the dream of home ownership becomes ever more distant for an increasing number of Australians, maybe there’s another alternative available? Has anyone out there heard of the term ‘adverse possession’? No? Curious as to what it is? Well, you should be, because adverse possession is actually a very interesting law.
 

What is adverse possession?

Adverse possession is when a person gains title to a property if they have remained in that same property for a certain amount of time. What is interesting about the adverse possession laws is that if a person does indeed continuously reside in the same place for the requisite amount of time, their title to the property may potentially be greater than the actual owner!

In order for a person to successfully claim title to a property over the true owner, and extinguishing their title at the same token, a person must gain uninterrupted possession of a property for 12 years or longer in Queensland and New South Wales. While in Victoria for a person to be successful in their claim of adverse possession, they must have stayed at the one place for 15 years or more.

Interestingly, a person in New South Wales can potentially make a claim for Crown land through adverse possession if they have lived in the same place for 30 years.
 

How can a person be successful in a claim for adverse possession?

For a claim of adverse possession to me be made, the courts have stated that there are two elements that need to be fulfilled before a person can make the claim:
  • there must be factual possession;
  • there must be an intention by the person to possess the property.

The adverse possessor must demonstrate that they have factual possession of the property, by showing the appropriate amount of physical control.

Physical control can mean placing a lock on the property, or fencing the property off to the exclusion of others which is the type of behaviour one would from the true owner of the property. Furthermore, the person must also show that they have an intention to own, and use the property under their own behalf, while also at the same time also excluding others from the property.

However, readers should be aware that adverse possession isn’t that straightforward. In order for an action of adverse possession to be potentially successful, the judgement in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 might illuminate you to what is also required.

Adverse possession must be “open, not secret, peaceful not by force; and adverse, not by consent of the true owner”. 

So it’s not actually that easy after all. 

 


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