Possession is nine-tenths of the law, as the saying goes. This means that it's easier to claim legal ownership of land you occupy than land you don't. In Australia, a squatter with at least 12 years' continuous possession of a parcel of land may become the registered legal owner if he can jump through hoops at the state land registry.
TL;DR (Too Long; Didn't Read)
In Australia, a long-term squatter can claim legal ownership of the property belonging to another by following the procedure set by the state land registry.
Prove Long-term Continuous Possession
In Australia, squatter's rights are governed by the law of adverse possession. The basic principle here is that a person who occupies property for long enough can claim legal title to it, as long as the rightful owner doesn't object. In Queensland and New South Wales, the relevant period is 12 years. In Victoria, the period is 15 years. It's essential that you occupy continuously during this time – any break in possession means the clock starts again.
Read More: How to Take Property by Adverse Possession
Requirements for Adverse Possession
To successfully claim adverse possession, you must occupy the land to the exclusion of others. In other words, you must be able to show that you occupy the property as if it is your own, for example, by installing locks and paying council rates. The land registry will need to see documentary evidence and witness statements to back up this fact. The word "adverse" is important, here – if the owner gave you permission to be on the land through a lease or an easement, you do not qualify for squatter's rights. Finally, you must show that you are using the property openly and not in secret; if you're hiding behind trees where the public cannot see you, this likely would defeat a claim of adverse possession. The land registrar may call for ground photographs and other proof of open occupation.
Encroaching on Someone's Land
While we tend to think of squatting as the act of living on someone's empty property, a more common scenario is when someone encroaches on another's land, for example, by constructing a fence around a piece of land that actually belongs to a neighbor. As long as the neighbor does not object for the relevant period, then you could claim adverse possession of the fenced area. Be aware that in some Australian states, it's not possible to claim adverse possession of part of a lot. In these states, your claim would fail unless the fence enclosed all of the neighbor's land.
Filing a Claim for Adverse Possession
Each territory and state of Australia keeps a central register of all land ownership within the state. The Department of Lands, and not the courts, handles adverse possession claims for land within its jurisdiction. Applications are highly technical. At a minimum, you'll need to file:
- a completed application
- evidence of possession for the statutory period
- professional survey maps and photographs
- statutory declarations by a number of independent witnesses who can swear to the facts of your occupation
- a letter from the local council
- probate searches and land registry searches
You definitely will need the help of a lawyer and a surveyor to make the claim for possessory title.
If Your Claim Is Successful
The owner is entitled to counter your application, for example, by showing that you haven't occupied for a long enough period or you're only there with the owner's consent. If there's no objection, and the land registrar is satisfied that you meet the criteria for adverse possession, you become the registered legal owner, effectively extinguishing any claim the paper title holder may have to the property. You don't have to pay any money for the land, but you will have to pay stamp duty, a type of property transfer tax, if you are awarded title to the property.
Read More: How do I Find House Ownership Details in Australia?
- Findlaw Australia: Can a Squatter Claim Title to a Property?
- Fox and Staniland Lawyers: Acquiring Title by Adverse Possession in NSW
- Legal Beagle: How do I Find House Ownership Details in Australia?
- Legal Beagle: How to Take Property by Adverse Possession
- Legal Beagle: Types of Prescriptive Easements
- Legal Beagle: What Can You Do When Your Neighbor's Fence is on Your Property?
Jayne Thompson earned an LL.B. in Law and Business Administration from the University of Birmingham and an LL.M. in International Law from the University of East London. She practiced in various “Big Law” firms before launching a career as a commercial writer. Her work has appeared on numerous legal blogs including Quittance, Upcounsel and Medical Negligence Experts.