A squatter is a trespasser — someone living in a property without the consent of the owner. In Australia, it's possible for a squatter to eventually claim ownership of a property by adverse possession.
The Legal Reasons
Taking control of property by trespassing may sound outrageous. The Tasmania-based firm Tierney Law explains that there's legal logic behind it. If someone wrongs you, the law doesn't usually give you forever to take action — you can't usually file a lawsuit for a car accident 20 years later, for instance. If someone trespasses but the owner does nothing for years, eventually the owner loses the right to force the squatter off.
The law firm says that adverse possession often involves undeveloped land where the owner has died and the property sits unused. In these cases, there's no-one who will challenge or object to the squatter taking title. The New South Wales government says it's much harder to establish a claim when dealing with developed land.
In Australia, you can only claim adverse possession of the property if you control it without the permission of the owner. Renting a house, for instance, cannot give you any ownership rights. The FindLaw website lists several requirements for an adverse possession claim:
- You must take possession openly, not by lurking on the property.
- Adverse possession must be peaceful. You can't claim squatter's rights by forcing the owner out.
- You must have the intent to possess the property.
You must meet these requirements while staying on the land for more than a decade. In Queensland and New South Wales, for instance, the squat must last 12 years. In Victoria it must be at least 15 years. If the owner pays property taxes — called council rates in Australia — for any part of that time, those periods don't count toward the total.
If different squatters occupy the land over the years, their combined residence counts towards the necessary years. For example, if a squatter who lived on the land nine years sells her squat to a new resident, the new squatter can count those nine years if she files an adverse possession claim.
When a squatter applies for land title, he will have to show the state's Land Register evidence he's acted as the owner of the property would act. For empty land, the standard display of ownership is to fence the land in. Tierney Law says a sign declaring that "No Entry Allowed Without Permission" and giving the squatter's name as the decider, drives home the point. The squatter should also pay the council rates on the property, as proof of his intent to take ownership.
The law firm says it also helps to keep records, such as a journal chronicling whatever acts the squatter takes to assert title. Photos of the fence and sign help too. The squatter must have at least one other witness to confirm his ownership.
Filing for Title
Before filing for title, the squatter must announce his intention in the newspaper, post a notice on the property, and notify anyone with an interest in the land — for example, an owner listed in the Register.
The squatter should have a professional survey made to confirm that the land she occupies is the same as the property she's claiming. If she's only squatting on part of the property, that makes her claim harder to justify.
The squatter files the claim with her state government. Forms and instructions should be available on the state website.