Adverse possessions

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What is Adverse possessions or possessory possession?

Adverse possession is when a person gains title to a property if they have remained in that same property for a certain amount of time.

A person or persons who has occupied the Land for the prescribed amount of time, in certain circumstances can prevent the true owner from reclaiming the Land.

Length of time required to claim title 9544936_l

In order for a person to successfully claim title to a property over the true owner, and extinguishing their title at the same token, a person must gain uninterrupted possession of a property for 12 years or longer in Queensland and New South Wales.

In Victoria for a person to be successful in their claim of adverse possession, they must have stayed at the one place for 15 years or more.

A person in New South Wales can potentially make a claim for Crown land through adverse possession if they have lived in the same place for 30 years.

How is adverse possessions proved?

The claimant must have evidence of occupation and possession.legal law

Adverse possession means not a mere occupation but also actual physical possession in an open and peaceful manner, without consent of the original owner.

The claimant will need to be able to prove to the Titles Office in the State of jurisdiction that they have occupied the land for the entire period of time required.

If there is any form of permission (such as a license, lease, or agreement to use the land), adverse possession cannot be claimed because it will be clear that the owner never intended to pass over ownership.

Who can claim adverse possession?

Anyone who is prepared to take possession of a vacant property or land subject to meeting all the requirements of the Laws of the State of jurisdiction.

If you were intending to attempt this seek advice from a property Lawyer as gaining adverse possession isn’t an easy process and few people will gain land through this method.

The law and squatters

Under the Limitations Act 1969 in NSW, a claim of adverse possession can be made against an owner after living in the property unobstructed for a period of 12 years. 

This is an interesting law also known as “squatter’s rights”.

Squatters are not tenants.

Squatters occupy premises without the consent of the person who is legally in possession (typically the owner).

That’s why property owners want them occupied by legal tenants as a property that has been unoccupied for some time has the potential to be claimed by a squatter.

This could happen in the case of a deceased estate that may be in litigation for some years because of claims against the Will or no Will existing and the relatives do not have the right to take possession and have to leave the property empty until the estate is resolved

Garth Brown’s Comments

9180619 - 3d illustration of a scale and two houses

Adverse Possession was recently bought to the fore when a Sydney squatter made news because he is attempting to claim legal ownership of a million-dollar terrace by citing a historic tenancy law using an arcane real estate law.

Whether or not this squatter will be successful remains to be seen but it highlights the dilemma faced by property owners with unoccupied premises (as outlined in the above paragraph), as squatting has become a way of life for a growing number of people and it can be very difficult and expensive evicting them.


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About

Garth Brown is the Founder and Director of Brown and Brown Conveyancers one of Sydney’s leading Conveyancing Firms. With 20 years experience as a practicing Conveyancer he has assisted hundreds of Clients to navigate through the maze of conveyancing issues when buying and selling property. Visit www.conveyancers.net.au/


'Adverse possessions' have 29 comments

    Avatar for Garth Brown

    June 27, 2021 Lily

    Hi Michael,
    The front of our family home in NSW is bordered by a strip of crown land between our front boundary and the road; apparently it was kept for the purpose of widening the road but that has never occurred and is highly unlikely to. Our parents have maintained the land which is laid to lawn for 60+ years. Is it possible to claim it under adverse possession given the length of time it has been used and maintained as if part of the property?

    Reply

      June 27, 2021 Michael Yardney

      No Lily. If you think about it almost everyone has land in front of their title – the nature strip which they maintain – but they can’t get possession of it from the council

      Reply

    Avatar for Garth Brown

    June 16, 2021 Wendy Matthews

    Hi Michael, We have owned a property for over 25 years, which backs onto the disused rail yards in Rozelle. Currently, the land behind our fence is being developed for the Westconnex project. Our house is a 100+-year-old and duplex and ours and the co-joined house have a fenceline that extends onto the government-owned land behind by about 30 square metres each. The fence line has been there for over 30 years and sits approximately 4 m higher than the land below that is being developed. The land inside our fence has a clothesline, gardens beds, a footpath and a retaining wall all of which was there before we bought the property. The previous owner had a lease agreement with State Rail who controlled the land previously and when we bought the house we inquired about a new lease but were told they were not issuing new leases at that time. We have never paid lease payments on the land and don’t believe there is any current leases as the ownership of the railyards has changed several times during the westconnex project depending on what works are being done.
    We are keen to sell the property but are concerned that the uncertainty of the ownership of land may put people off. Is it possible to claim adverse possession on the land or is there another way to go about purchasing the land? I have spoken to/emailed about 5 different government departments over the last year but no one seems to be able to help.
    Thanks Wendy

    Reply

      June 16, 2021 Michael Yardney

      It is almost certain that you will not be able to purchase the land – you can’t imagine the government authorities selling opportunity portion of land, and similarly I believe it would be very difficult to claim adverse possession from a government authority. You’ll need to chat with your solicitor, but maybe it’s best to let any potential buyer realise that your property line finishes before the fence.

      Reply

    Avatar for Garth Brown

    April 30, 2021 Jamie

    Hello again Michael, As Your site states in the following I have had uninterrupted possession for over 12 years! (“In order for a person to successfully claim title to a property over the true owner, and extinguishing their title at the same token, a person must gain uninterrupted possession of a property for 12 years or longer in Queensland and New South Wales”.) As I wrote before, I have been maintain this property keeping
    UN-kept laws by the owner to keep the fire break between the property & mine! What do you think?

    Reply

      April 30, 2021 Michael Yardney

      I’m not a lawyer Jamie, would you really think it’s fair that you take over somebody’s property – their asset – just because you have maintained it. I don’t think the courts would see that you have had “possession” of the property – I don’t think you’ve been living in it have you?
      Again – best to seek legal advice – this is only a general information website

      Reply

    Avatar for Garth Brown

    April 28, 2021 Jamie

    Hi Michael, My wife children & I have been living in a some what rural part of south east qld. I have been maintaining an adjoining property for around 12 years as the owner has neglected to keep the fire break! I have been mowing, tree lopping hazardous tree’s ect.
    I erected a fence & have been treating this neglected land as my own. I have tried looking for the owner to no avail. Today a surveyor came so I’m assuming that now the owner is looking to sell the property. I don’t wish to take the property at no cost but I don’t want to be charged with trespassing either. Does the adverse possession law protect us in this matter?

    Reply

    Avatar for Garth Brown

    February 13, 2021 Amanda

    We have owned the property for 40+ years last year a neighbour said that the boundary fence was wrong he has had a surveyor in that seems to prove this. We bought from person who owned both properties and divided it up he also put up existing fence. We have maintained land for entire time. no other previous owners of his property had ever questioned it. Would this adverse possession laws work in this case

    Reply

      February 13, 2021 Michael Yardney

      40 years ownership with the fences in the same place for all that time should give you a good case for adverse possession. Of course you’ll need legal advice to confirm you have a valid claim

      Reply

    Avatar for Garth Brown

    February 10, 2021 Jenny

    I have lived on my regional town property for 18 years. Someone just bought the property next door and has advised me that the dividing fence is incorrect and that some of his land is on my side. Would adverse possession apply in this case?

    Reply

      February 10, 2021 Michael Yardney

      Jenny, how does your neighbour know this? Did they conduct a survey? If you have only been living in your property for 18 years it may be hard to claim adverse possession, please seek legal advice

      Reply

    Avatar for Garth Brown

    January 18, 2021 Richard

    I have used a property across the road for 5+ years now, I have photo evidence and have kept maintenance of the land, though the land does not have a DP number can I make claim to this land and if so when? (NSW)

    Reply

      January 18, 2021 Michael Yardney

      It’s not your property is it? I’m not sure what right you have to use it, but there have been some “interesting” court cases lately stopping people trying to take advantage of the adverse possession rules

      Reply

    Avatar for Garth Brown

    October 20, 2020 Frank Michen

    Hi Michael,
    If there was a deceased estate of a close friend whom had no next of kin and no will can be found.
    Can adverse possession be claimed after 12 years of paying utilities and maintaining the premises or would this eventually become the Crown’s property?

    Reply

      October 20, 2020 Michael Yardney

      How did the property remain vacant for 12 years?

      Reply

        Avatar for Garth Brown

        October 21, 2020 Frank Michen

        Hi Michael,

        The property has only been vacant 1.5 years but the utilies and rates are currently being paid by myself as well as maintenance .
        As there is no next of kin or will, if I was to continue this for 12 years can adverse possession be claimed?

        Reply

    Avatar for Garth Brown

    July 12, 2020 Martin Dewhirst

    If it’s a deceased estate that is just getting over grown. The next of kin seems to be uncontactable. I’m happy to maintain it for them in case they are eventually found. After 12 years does that mean I can make a claim. To prevent squatters living next door to me

    Reply

      July 12, 2020 Michael Yardney

      Martin – I see you have a New Zealand email address – I don’t understand the NZ rules – bets check with a local solicitor

      Reply

    Avatar for Garth Brown

    January 7, 2020 Kevin Brennan

    We currently allow our neighbor to run his sheep on our property in Queensland for the past 6 months
    He has installed irrigation on our existing fence and a water tank and pump using water from his bore on his property
    He has also just erected a new additional fence to create an additional paddock
    Would he have any claims to the section of land that we have allowed him to use

    Reply

    Avatar for Garth Brown

    November 13, 2019 Dee

    Hi, After 30+ years a squatter in QLD has stated that he was given official documentation that he now has the legal right to stay there. However, he is now trying to sell the property. Is this legal? Would he have paperwork that says he now OWNS the property or just that he has the right to stay there? I hope you can help and appreciate your time. Thank you.

    Reply

    Avatar for Garth Brown

    November 9, 2019 RFM Scott

    Can adverse possession claims be made against a property which has no listing in the NSW LRS? The property has been empty for some years, but the house and land have power and water running to them (currently not turned on, but that’s just a matter of arranging it with the power and water companies, presumably). If one were to pay council rates, power & water and renovate and maintain the house and land, while living there for 12 years, can a claim be made to the title, despite there being no title on the land registry?

    Reply

      November 9, 2019 Michael Yardney

      I know there are seminars teaching you this technique this is NOT something I would advocate – it doesn’t seem right does it to pinch someone’s property

      Reply

    Avatar for Garth Brown

    August 14, 2019 Jack

    Michael, that’s very interesting as the advice I’ve received states zero substance to substantiate a claim, so from this point forward I don’t think I’ll waste any more money.

    Reply

    Avatar for Garth Brown

    August 10, 2019 Jack

    It is my understanding that under Torrens Title land in NSW that a claim for Adverse Possession against the legal owner cannot be made for part of the lot e.g. a section of land. Is this correct? Also, if the person making this claim from their neighbouring property have only used this area of our land for 4 years being the time from their purchase, can they use the cause of action date being from the date of their previous owners purchase, which was 2010?

    Reply

      August 10, 2019 Michael Yardney

      Jack – it sounds like you have a claim against you – may I suggest you seek professional legal advice

      Reply


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