Squatters and Property Title Claims

You really don’t need to be any sort of expert to know that Australian property prices are incredibly high, even compared to other affluent countries around the world. The dream of owning one’s own home seems to grow further and further for the average Australian citizen, but what if there were an alternative? Getting familiar with this little term might help: “adverse possession”.

While this type of talk might be little more than hyperbole for the typical person, it’s a rather interesting law and one can gain understanding of it, though not expertise of lawyers, which is worth learning more about.

What Is It?

Simply put, adverse possession relates to a person gaining title over a property that they have been living at for a certain length of time. The truly interesting thing about this law is, the “squatter’s” title to the property might actually grow greater than that of the real owner.

In order for someone to claim ownership of a property, instead of the original owner, a person would have to stay there for at least 12 years, in accordance to the law in New South Whales and Queensland, at least. This is increased to 15 years in Victoria. Even Crown land can be affected by the adverse possession law in New South Wales, but the new resident would have to stay there for 30 years or greater.

How’s It Claimed?

In order to make a claim on adverse possession, the courts need two requirements to be met by the person who is making the claim. They are as follows:

  • The person must factually possess the property.
  • The person must have intention to possess the property.

But what does this mean? Isn’t the whole point of the claim to gain possession of the property? The person who is claiming adverse possession must be able to demonstrate that they have a certain amount of control over the property.

Factual possession means that they physically possess the property. This might mean that they have created a fence around the property, or that they have locked the property. They must be able to show that they have taken possession of the property in a way that excludes other people from gaining access to it. These are the actions that a legitimate owner might take.

Intention to possess relates to purposefully trying to own the property, and not just blocking it off by accident, or staying there out of convenience.

This law can be quite complex. In addition, it has to be “open, not secret, peaceful, not by force; and adverse, not by consent of the true owner.”

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