To own a home is a great feat in one’s life. However, not everyone is blessed to have the opportunity and the money to buy a home. Sadly, these people, particularly squatters tend to “squat” or occupy homes to seek refuge and protection. Fortunately for them, like other homeowners, some squatters rights over a property also exist.
So how can they claim ownership of a home? Can they reside without the owner’s permission? What are the legal implications? Let us answer all of these questions and more in this article about squatters rights in New South Wales.
The Concept of Adverse Possession
Adverse possession is an important concept to understand in our topic today. This type of possession allows a person who occupies a land to gain legal ownership over it. What is the time requirement? 12 years. This requirement seems a bit much, right? Not for Mr Gertos who possessed a property for a staggering 14 years! Read the case highlight here.
What Does the Limitation Act 1959 Say About Squatters Rights?
Section 27 of the Limitation Act 1959 contains the 12-year requirement of land ownership to claim adverse possession. However, there are other conditions to take note of:
- The government (The Crown) cannot take legal action over a squatter if 30 years have passed since they had the legal right to do so. Other individuals, on the other hand, have 12 years to act.
- The 12-year limit does not apply to individuals if they claim the land through the government and the government was the original party with the right to recover the land.
Now what if the government had the right to recover land and someone wanted to claim adverse possession through the government? If this is the case, they have to act within the shorter of the following time limits:
- The time limit that applies to the government which is 30 years; or
- 12 years from when they (the person claiming through the Crown) first had the right to recover the land (which must be after the Crown’s right to recover).
Section 38 of the Limitation Act 1959 provides squatters rights for a “squatters clock”. This timer determines how long a person can occupy a home before they can claim adverse possession. Let’s look at the conditions.
- The clock does not start ticking until someone begins to claim adverse possession.
- If another squatter replaces the original squatter, the clock keeps running.
- A squatter who leaves the land will result in a time reset. If they do decide to come back, a new timer starts again.
What Does the Real Property Act 1900 Say About Squatters Rights?
In our article about squatters rights, the Real Property Act 1900 has also some laws you should know of. A person who simply lives on a registered land under this Act for any length of time doesn’t give them ownership. This applies if it goes against the rights of the registered owner. Standard squatting time limits cannot take away the legal title of the registered owner
However, there are exceptions for people who occupied land before it was registered under this Act. If this is the case, and a “qualified” or “limited” title was created, then a person may be able to claim ownership. In these pre-registration cases, the time a person spent occupying the land before registration is considerable.
Regarding Torrens title land, adverse possession laws may have to apply to the entire parcel rather than just a portion. A Torrens title is a single certificate of title for an allocation of land.
Furthermore, the certificate includes information about the present owners of the land, any easements or encumbrances, and specifics about the title’s unique reference. Because Torrens title governs property ownership in NSW, the owner who benefits from an extra strip of land cannot claim ownership under this principle.
What About in Victoria?
Victoria also has laws about adverse possession that allow squatters rights over abandoned property. Section 8 of the Limitations Act 1958 state that a person can claim adverse possession if they have occupied the relevant property for 15 years. This is a longer requirement compared to NSW laws.
Implications to Real Property Owners
Property owners should be aware of squatters’ rights and the risk of adverse possession. So, the next time a property owner leaves their home, they should ensure they can secure it legally. How can they do this? Simply put, they can regularly do the following:
- Inspect their property and secure entrances that squatters may enter. You can secure your property with fences, locks, and other security measures to prevent unauthorised access.
- If you notice any signs of occupation, you should immediately remove the settlers and prevent them from returning.
- Ensure that their property is registered and have up-to-date records of their ownership and boundaries
- Learn to take legal action against squatters who occupy your property.
If a property owner becomes aware of adverse possession, they should take immediate legal action to prevent the person from acquiring ownership of their property. Further, this may involve issuing a notice to the occupier to:
- Cease their occupation; or
- Commence legal proceedings to regain possession of the property.
Talking It Out With a Squatter May Help
In some cases, you can negotiate with squatters and tell them about squatters rights. This age-old solution to a lot of problems is an effective way to protect your property. To improve the negotiation procedure, a property lawyer can help with squatters and reach a beneficial settlement for both parties. Here are some tips for effective negotiation with squatters in NSW:
- Be clear about your expectations. Your expectations must be clear once you’ve established communication and listened to the squatters’ side of the story. Tell them you expect them to vacate the property within a specific timeframe, and explain the consequences.
- Be respectful. Squatters are still humans. Do not forget that. Treat them with respect and dignity, even if you’re frustrated or angry about the situation. Thus, you must avoid using aggressive language. This will only escalate the situation
- Offer support. Target the issue and not the person. Did the squatters have a legitimate reason for occupying the property? Maybe they didn’t do it out of spite or maybe they were just seeking shelter from an incoming storm. You can consider offering support to help them find alternative accommodation or address their underlying issues.
If the squatter does not want to comply or is acting unreasonably, then you may opt for legal action. Read on to know more.
The Importance of Seeking Legal Protection
Adverse possession allows someone occupying a property without the owner’s permission for a certain period to claim legal ownership. However, property owners can do the following to defend against squatters’ rights and prevent their property from being taken away.
The first step to defending against squatters’ rights is to hire a property lawyer. A property lawyer can help you understand your legal rights and obligations as a property owner in NSW. Moreover, they can assist you in taking necessary steps to prevent squatters from occupying your property, such as:
- Assessing your legal rights and advise you on protecting your property against squatters.
- Issuing a notice of trespass to squatters, informing them that they are occupying your property illegally and that they must vacate immediately.
- Referring squatters for social services or financial aid.
Defending against illegal settlers’ rights in NSW requires a proactive approach. By hiring a property lawyer, taking preventative measures, and regularly using and monitoring your property, you can prevent squatters from claiming adverse possession of your property.
Remember, prevention is the best defence against squatter’s rights claims. Thus, if you own a property in NSW, take the required steps to protect your investment and prevent squatters from taking away what is rightfully yours. Property lawyers at JB Solicitors will assist you in protecting your property rights.
Contact us today if you need help with property law matters.
