Yes, squatters rights in Australia do exist, and under the right conditions, a squatter can legally claim ownership of an abandoned property. Understanding how these rights work is essential, whether you are a property owner trying to protect your assets or someone who has been occupying unused land for years.
Squatting is the act of using empty, disused or abandoned property without the owner’s permission. Most squatters do not occupy a property with the intention of taking possession of it later. They squat on land owned by other people because they have no other place to live. Not all squatters can afford or have the opportunity to own or rent a home, let alone maintain one. However, if they do decide to occupy a property, they must enter it lawfully.
What is considered lawful entry for squatters? A squatter may lawfully enter a building through an unlocked door. However, it is unlawful for them to remain after being asked to leave by the registered owner or a legitimate occupant. If they refuse, the owner may charge the squatter with trespassing.
Squatters Rights and Adverse Possession Laws in Australia
Squatters rights laws operate through a legal mechanism known as adverse possession. This allows a person to gain legal ownership of a property if they have occupied it continuously for a certain period without dispute from the rightful owner.
Adverse possession rests on a simple principle: landowners have a responsibility to use, protect and maintain their property. If an owner abandons their land for a prolonged period, the law considers them to have forfeited their right to defend it. The original owner loses their right to eject a squatter once the squatter has possessed the property for the full statutory period without any attempt by the owner to reclaim it.
One aspect of adverse possession that is rarely discussed is sequential possession, sometimes called “tacking.” In Australia, the ownership rights of adverse possession can be passed between different squatters who have occupied the same land sequentially. This means a new occupant can add their period of continuous possession to that of a prior occupant to meet the required time limit. This significantly expands who can make a valid claim.
The common criteria for adverse possession in Australia include:
- The claimant must have been in actual, unrestricted and continuous physical control of the land for the required period
- The property was open and unguarded, such that others would reasonably believe the claimant was the rightful owner
- The claimant had factual possession without force or violence
- Possession was held without the benefit of an easement or caveat granted by the owner
- The claimant demonstrated an intention to own the property exclusively
What Evidence Supports a Squatters Rights Claim?
Evidence is critical in any adverse possession claim. Physical control must be demonstrable through clear acts of ownership, and courts look closely at the quality of that evidence.
Payment of council rates is one of the most compelling pieces of evidence a claimant can present. It signals to the court that the squatter genuinely assumed the responsibilities of ownership and not merely the benefits of occupation. Alongside rates, the following evidence can support an adverse possession claim:
- Changing locks on structures and commissioning repairs to the property
- Proof that the land has been leased to others
- A land survey conducted by a licensed surveyor
- Statutory declarations from the applicant detailing how and when possession commenced
- Witness statements attesting to the nature and duration of the occupation
- A land valuation
- Formal notice given to anyone with an interest in the land
Squatters Rights Adverse Possession Time Limits by State
Squatters rights laws differ significantly across Australian states and territories. The table below outlines the key time limits and relevant registries.
| State | Time Limit | Where to Make a Claim |
|---|---|---|
| Queensland (QLD) | 12 years | Titles Queensland |
| New South Wales (NSW) | 12 years (Crown land: 30 years) | NSW Land Registry Services |
| Victoria (VIC) | 15 years (cannot be made over Crown land) | Land Use Victoria |
| Tasmania (TAS) | 12 years | Land Titles Office |
| South Australia (SA) | 15 years (hybrid system applies; registered owner may lodge a caveat to veto registration) | Land Services SA |
| Western Australia (WA) | 12 years | Registrar of Titles |
| Australian Capital Territory (ACT) | Adverse possession is not covered under ACT land laws | N/A |
| Northern Territory (NT) | Adverse possession is not covered under NT land laws | N/A |
South Australia’s position deserves special mention. The state operates a hybrid system that takes a distinctive approach by affording the registered proprietor the opportunity to lodge a caveat, which halts the registration process even after the 15-year limitation period has been satisfied. This effectively grants the registered owner the power to veto any application.
What Elements of Possession Must Squatters Satisfy?
Possession under squatters rights law comprises two essential components.
First, the claimant must have had sole occupation of the property. For this to occur, the legal owner must have vacated the property. The moment a squatter enters and occupies abandoned land, the limitation period begins to run in their favour. However, the landowner may take action to reclaim it, such as by re-entering the property or expelling the squatter.
Second, the squatter must demonstrate that they intended to be the only occupier of the property from the moment they first took possession. They must show that they had the intention to exclude even the rightful owner from the land. Squatters do not need to prove they believed they were the rightful owner, only that they intended to possess the land as if they were.
If a squatter has occupied land for the full statutory period, they may be entitled to remain as the rightful owner through adverse possession, and the holder of that claim essentially assumes ownership because the original owner neglected to defend their rights over time.
Squatters Rights in Action: Case Studies
Hardy v Sidoti (2020)
The case of Hardy v Sidoti (2020) involved two adjacent homes in Redfern, Sydney. Mr Hardy had for many years enclosed a portion of a former “dunny lane” (an alley designed as access for waste collectors from terraces) and used it as his own Japanese-style garden. Hardy acquired his home in 1998 and, in 2002, demolished his back fence to extend the garden into the lane. Mr Sidoti purchased the adjoining land in 2018, and the disputed lane was included on his title.
Mr Hardy escalated his concerns to the Supreme Court, successfully arguing that through adverse possession, he had obtained legal title to the portion of the dunny lane his garden occupied.
McFarland v Gertos (2018)
In 1998, property developer Bill Gertos discovered an abandoned property with open doors in Sydney. The elderly woman who had been renting the house had passed away that year. Gertos entered lawfully, changed the locks and commenced substantial renovations before leasing it out.
In 2017, police informed the deceased woman’s family that Gertos had been renting the property for nearly 20 years. The beneficiaries opposed his adverse possession application. However, Gertos had presented sufficient evidence under common law, including his landlord-like conduct of hiring builders, leasing the property and maintaining it throughout. The court awarded him legal ownership of the property, which was worth approximately $1.6 million.
This case is a critical lesson for beneficiaries. Immediately securing an inherited property after a loved one’s death is essential to preventing adverse possession claims. A valid Will with clear provisions for beneficiaries makes this process significantly easier.
Read: What Is A Will & Why Should You Have One?
Protecting Your Property Against a Squatters Rights Claim
Property owners and beneficiaries should take the following steps to protect their assets:
- For inherited properties, beneficiaries should take steps to secure and maintain the property as soon as probate allows
- Secure the property promptly with fences, locks and security measures
- Conduct regular inspections of unoccupied properties and remove squatters immediately
- Issue a formal notice of trespass as soon as unauthorised occupation is discovered
- Apply to the Supreme Court for an interim possession order, which can prevent a squatter from making an adverse possession claim
Read: What Is A Will & Why Should You Have One?
Speak to a Property Lawyer About Squatters Rights
Whether you are a squatter who believes you have met the conditions for adverse possession, or a property owner concerned about unauthorised occupation of your land, getting legal advice early is the most important step you can take.
JB Solicitors acts for both property owners and squatters in disputes about adverse possession and property rights. Our experienced lawyers can assess whether you meet the legal requirements to claim property or help you defend against an adverse possession application.
Contact us today to discuss your situation and find out where you stand.
Frequently Asked Questions About Squatters Rights in Australia
Can a squatter legally own a property in Australia?
Yes. Under adverse possession laws, a squatter can assume legal ownership of a property if they demonstrate long-term, uninterrupted use of the land without the owner’s permission and the original owner has failed to assert their rights within the limitation period.
How long does a squatter need to occupy a property to make a claim?
The required period varies by state. In New South Wales and Queensland, the minimum period is 12 years. In Victoria, it is 15 years. In South Australia, it is also 15 years, though a hybrid caveat system applies. The ACT and Northern Territory do not recognise adverse possession at all.
Can a property owner forcibly remove squatters?
No. Property owners cannot use physical force to remove squatters. They must follow legal channels, which typically involve issuing a formal eviction notice, applying for a court order for possession, and engaging law enforcement to carry out the eviction if the squatter refuses to leave.
Is paying council rates important for an adverse possession claim?
Yes. Payment of council rates is one of the strongest indicators of an intention to possess the land exclusively. Courts treat it as evidence that the squatter assumed the full responsibilities of ownership, not merely the use of the property.
Can two different squatters combine their periods of occupation to make a claim?
Yes. This is known as sequential possession or “tacking.” Ownership rights in an adverse possession claim can be passed between different squatters who have occupied the same land consecutively. Together, their combined period of occupation may satisfy the statutory time limit.
What is the best defence a property owner has against squatters rights?
The best defence is proactive and prompt. Securing the property, maintaining it, conducting regular inspections and issuing trespass notices as soon as unauthorised occupation begins are the most effective steps. Applying to the Supreme Court for an interim possession order can also stop a squatter from completing the limitation period.
Does adverse possession apply to Crown land in Victoria?
No. In Victoria, a claim for adverse possession cannot be made over Crown land. This is one of the key distinctions between Victorian law and the laws in some other states.
What happens if I inherit a property and a squatter has already been there for years?
If you inherit a property and a squatter has already been in occupation for a significant period, you need to act immediately. Secure the property, seek legal advice and issue a trespass notice as soon as possible. If the squatter has already reached the 12 or 15-year limitation period, you may need to contest an adverse possession application before a court.
