Adverse possession (“squatters rights”) is the occupation of land to which another person has a title. The person occupying such land has the intention of possessing it as one’s own. An adverse possessor becomes the legal owner of the claimed land if they have exclusively occupied it for at least 12 years. However, the period may vary between states. This article discusses adverse possession in New South Wales (NSW).
Adverse Possession In NSW
In NSW, a person becomes the legal owner of the land claimed through “adverse possession” once they have occupied the property “adverse” to the title of the registered owner. They must possess it against the wishes of the legal owner. Thus, to gain legal ownership through this type of exclusive possession, the adverse possessor should not possess the land pursuant to arrangements or agreements with the legal owner.
The doctrine of adverse possession requires the adverse owner to establish actual possession of the land. Furthermore, they must prove their intention to possess the land to the exclusion of the world, including the registered proprietor of the land. An overt uninterrupted period of possession can establish actual possession. Such possession should be without the use of force and without permission of the registered proprietor of the land.
An adverse possessor becomes the absolute owner after they possess the land for 12 years. Moreover, they must also obtain a successful application for title to the land owned. Being an absolute owner allows the adverse possessor to keep, lease, transfer, or sell the land as if they purchased it in an ordinary way. In addition, one must note that the 12-year period must be continuous, meaning it should not be broken. However, if there is a break in possession, the 12-year period will recommence.
Requirements for a Person Claiming Adverse Possession
- Period Requirement. The adverse possessor must have their possession commenced and uninterrupted of the land for at least 12 years.
- Factual Possession. The adverse possessor must prove that they have taken physical control of the property.
- Open and Peaceful Possession. An open possession means that outsiders recognise the adverse possessor as the legal owner of the land. A peaceful possession means that the adverse possessor did not take possession of the property through violence.
- Possession Without Consent. The adverse possessor must possess the land without the legal owner’s consent.
- Intention to Possess (Animus Possidendi). The adverse possessor must show that they had the intention to possess the land to the exclusion of others, including the legal owner.
Case Law: McFarland v Gertos  NSWSC 1629
McFarland v Gertos  NSWSC 1629 involves overlooked properties held by executors of a deceased estate. In this case, the legal owner of the property passed away in 1947. The property became vacant in 1998. Mr. Gertos took possession of the seemingly abandoned property. He changed the locks to the property and made improvements and renovations.
In 2017, Mr. Gertos applied to become the registered owner of the property pursuant to Section 45D (1) of the Real Property Act 1900 and Section 27 (2) of the Limitation Act 1969 No 31. He continually possessed the property for 14 years.
The descendants of the original owner challenged Mr. Gertos’ application to become the registered owner of the property. According to them, as they are the daughters and granddaughters of the original owner, they were entitled to the property through inheritance.
However, they only found out about the property in 2017. But they further argued that Mr. Gertos did not show intention to possess the property and that the 12-year limitation period should have been suspended because the original owner died.
The NSW Court rejected their arguments. According to the Court, Mr. Gertos did show intention to possess the property. He rented out the property, made investments on it, made improvements and renovations, changed the locks, and paid taxes and water rates.
These actions show that Mr. Gertos did show intention to become the legal owner of the property. Furthermore, he possessed the property for 14 years without question, and the possession was uninterrupted.
The Court held that 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”. Thus, Mr. Gertos successfully became the registered owner of the property.
However, note that if the plaintiffs brought a claim to the property within the 12-year limitation period, they would have been successful in obtaining the property regardless of Mr. Gertos’ improvements and renovations made on the land. Thus, if the executors of the deceased estate did not overlook the land in question, the daughter and granddaughters would have been successful in their claim over the property.
Application for Adverse Possession
An adverse possessor can lodge an application for possessory title with the NSW Department of Lands. The application must include the following:
- Period Requirement. The adverse possessor must have continuous and uninterrupted possession of the land for at least 12 years.
- Proof of Possessory Title. The application must provide evidence showing that the adverse possessor meets the requirements for adverse possession mentioned above.
- Statutory declarations by disinterested persons. These persons must swear to the various facts on which the applicant seeks to rely on to establish the right to the possessory title.
- Letter from the Local Council. The application must be accompanied by a letter from the local council stating various facts.
- Documents from a Registered Land Surveyor. The application must include a survey of the land by a licensed land surveyor.
- Probate searches. Most often, the lands that are subject to an application for the possessory title are lands that executors of a deceased estate have overlooked, just like the case law discussed above. Thus, the application must include probate searches identifying those persons entitled to be registered proprietors of the land. But, of course, the application will be for the applicant’s possessory title.
In addition, the Department of Lands will give the owners of neighbouring land notice of the application for possessory title. The notice period is 35 days, but this can be waived if the applicant obtains letters from the neighbours consenting to the application.
You can download the Primary Application Checklist for Lodging Agents and Solicitors from the NSW Land and Property Information here.
Defending Against Adverse Possession Claims
If you are the registered owner of a property that is subject to a claim for adverse possession, there are a few ways that you can defend against the claim. You can argue that:
- The claimant did not satisfy the requirements for adverse possession, such as the exclusive or continuous use of the land.
- The possession was not open or notorious, or it was only temporary.
- The adverse possessor did not have the intention to possess the land, such as using the land for a limited purpose like grazing their animals.
If you are successful in defending against the claim, you will retain your ownership of the property.
Seeking Legal Advice For Adverse Possession Claims
Many conflicts surround an adverse possession claim. Crown land, and land owned by a council, water authority or VicTrack cannot be the subject of an adverse possession claim. The process involves highly technical legal matters, and the application requires substantial evidence. Thus, before submitting an application for possessory title to land, we highly advise you to seek legal advice.
JB Solicitors has a leading team of lawyers who can help with your case. We can assist you with your application to help ensure the approval of your application. We can also assess your circumstances and provide legal advice on how to submit a strong application for the land.
Do you have any more queries on how to recover land or claim adverse possession of land? Contact us today.