Introduction

“Finders keepers” – surely this is just a silly thing we say as kids? However, complex property laws in New South Wales (NSW) might actually reflect this sentiment. Adverse possession, often referred to as “squatting,” is a legal concept that allows individuals to claim ownership of a property they have occupied without the owner’s permission for a specified period. In New South Wales (NSW), understanding squatters’ rights is crucial for both property owners and those who may find themselves in a situation where they are occupying a property without legal title. This guide provides essential information on the legal framework governing squatters’ rights in NSW, including the requirements for making a claim, the relevant legislation, and practical advice for both property owners and squatters.

For property owners, this guide offers insights into how to protect their rights and prevent unauthorised occupation, while for squatters, it explains the legal criteria that must be met to successfully claim ownership. By exploring key concepts, real-life case studies, and practical strategies, this comprehensive guide aims to demystify the complex legal landscape surrounding squatters’ rights in NSW. 

Understanding Squatters Rights in NSW

Definition of Squatters and Squatters Rights

A squatter is someone who occupies property without the legal owner’s consent. Squatters’ rights, or adverse possession, refer to the legal process through which a squatter may gain ownership if they meet certain criteria.

In NSW, these rights allow individuals to claim ownership of a property they have occupied without the owner’s permission for a specified period. Rooted in common law and governed by specific legislative frameworks, they are crucial for both property owners and those who might find themselves occupying a property without legal title.

Legal Framework and Adverse Possession Principles

The legal framework for squatters’ rights in NSW is primarily established by the Limitation Act 1969 (NSW) and the Real Property Act 1900 (NSW). These statutes outline the conditions under which a squatter can make a claim to ownership.

Key principles of adverse possession include:

• Continuous Possession: The squatter must occupy the property without interruption for a specified period, typically 12 years for private land and 30 years for Crown land.
• Open Possession: Occupation must be free and openly visible to members of the public.
• Exclusive Possession: The squatter must exclude others, including the legal owner, from the property.
• Intent to Possess: The squatter must demonstrate an intention to possess the property as their own, which can be shown through actions like paying taxes, maintaining the property or leasing it to others.

Together, these principles prevent abuse of squatters’ rights while protecting property owners from unauthorised claims. In this way, the legal framework balances the interests of both parties, ensuring that long‑term occupation can lead to legal ownership only under specific circumstances.

Adverse Possession Laws and Requirements

Essential Criteria for Adverse Possession Claims

To successfully claim ownership of a property through adverse possession in NSW, specific legal criteria must be met.

Furthermore, these requirements ensure that the claim is valid and that the squatter has demonstrated a clear intent to possess the property. The key criteria include:

• Continuous Possession: The squatter must occupy the property without interruption for a specified period. For private land, this is typically 12 years, while Crown land requires 30 years of continuous possession. For Crown land, if possession began before 1 January 1970, at least 60 years of continuous possession must be shown.
• Intent to Possess: The squatter must show a clear intention to possess the property exclusively. This can be demonstrated through actions like changing locks, paying property taxes, or making significant repairs.
• Physical Control: The squatter must maintain physical control over the property—such as by fencing the land or leasing it to tenants—to show that they have taken possession of it to the exclusion of others.

Evidence Required to Support a Claim

To support an adverse possession claim, specific evidence must be provided.

In particular, this evidence helps establish that the criteria for adverse possession have been met. Common types of evidence include:

• Property Surveys: A licensed surveyor’s report can confirm the boundaries of the property and the extent of the squatter’s occupation.
• Declarations: Statements from the squatter and any witnesses that detail the nature and duration of their occupation.
• Property Maintenance Records: Documentation of repairs, improvements, and other maintenance activities, demonstrating factual possession and intent to possess.
• Payment of Rates and Taxes: Records showing that the squatter has paid property taxes or rates, which can support the claim of adverse possession.
• Lease Agreements: If the squatter has rented the property to tenants, lease agreements can provide evidence of their intent to possess and control the property.

By meeting these criteria and providing the necessary evidence, a squatter can strengthen their claim to ownership under adverse possession laws in NSW.

Legislative Framework Governing Squatting Laws

Limitation Act 1969 in NSW

The Limitation Act 1969 in NSW establishes the timeframes for adverse possession claims and is essential for understanding squatters’ rights. Under this Act:

• A person can claim ownership of privately owned land after 12 years of continuous possession.
• For Crown land, the period extends to 30 years. If possession began before 1 January 1970, at least 60 years of continuous possession must be shown.

This legal framework ensures that property owners must act promptly to reclaim their land before the statutory period expires, thus preventing long‑term unauthorised occupation.

Real Property Act 1900 (NSW) and Its Implications

The Real Property Act 1900 (NSW) outlines the process for registering possession claims and the legal recognition of adverse possession. Under this Act, individuals may acquire a possessory title if they meet specific criteria:

• Continuous and exclusive occupation
• Occupation without the owner’s consent

Moreover, the Act emphasises the importance of maintaining possession and demonstrating an intent to possess, both of which are crucial for successful adverse possession claims in NSW.

Case Study: Bill Gertos and the Ashbury Property Claim

Case Summary of Bill Gertos Claim

Bill Gertos’s case is a landmark example of adverse possession in NSW. In 1998, Gertos discovered an abandoned property in the Sydney suburb of Ashbury—left unoccupied after its last tenant died earlier that year. He then:

• Took possession of the property by changing the locks and beginning renovations.
• Leased the premises to tenants, effectively assuming the role of landlord.
• Maintained near-continuous occupation for almost 20 years, until the original owner’s relatives uncovered his presence in 2017.

When the matter reached the NSW Supreme Court, the court ruled in Gertos’s favour and granted him ownership. It found that he had satisfied all the criteria for adverse possession, including:

• Open possession
• Exclusive control
• Intent to possess the property as his own

Moreover, Gertos’ payment of land taxes, ongoing repairs and improvements, and management of tenants clearly demonstrated his intention to exclude others. The property was ultimately sold for $1.4 million, underscoring the significant financial implications of a successful adverse possession claim.

Lessons from the Case Study

The Bill Gertos case provides valuable insights into the legal framework of adverse possession in NSW. Key lessons include:

• Intent to Possess: Actions like changing locks, renovating, and leasing the property clearly establish an intention to possess the land as one’s own.
• Physical Control: Even without physical occupation, the ability to manage tenants and conduct repairs supports a claim of exclusive control.
• Legal Framework: Understanding the stringent requirements for adverse possession is vital; property owners must proactively secure and monitor their assets.
• Preventive Measures: Regular inspections, robust security measures, and prompt action against unauthorised occupants can help prevent long‑term possession claims.

This case illustrates how adverse possession laws in NSW can lead to unexpected outcomes—even in urban areas—and emphasises the need for property owners to remain vigilant while potential squatters understand the precise legal criteria required to succeed.

Removing Squatters and Defending Against Adverse Possession

Preventive Measures for Property Owners

Preventing squatters from occupying your property is often more effective than trying to remove them after they have established possession. To deter unauthorised occupation and protect your rights, property owners can take several practical steps:

• Regular Inspections and Maintenance
  Conduct frequent walk‑throughs of your property—especially when it’s vacant—to ensure it remains secure and well‑maintained. Overgrown gardens, broken fences or uncollected mail may signal abandonment and attract squatters.
• Secure the Property
  Install strong locks, fences and other security measures to make entry difficult. For added protection, consider alarm systems or surveillance cameras that allow you to monitor the premises remotely.
• Act Promptly
  As soon as you discover squatters on your land, take action to remove them. The longer they remain, the greater chance they have of possessing the property beyond the limitation period. 
• Post Warning Signs
  Clearly display “No Trespassing” signs around the property. This not only deters potential squatters but also provides legal notice that unauthorised occupation is prohibited.

By taking these proactive steps, property owners can significantly reduce the risk of unauthorised occupation and safeguard their property rights.

Legal Remedies for Removing Squatters

If squatters do occupy your property, you can pursue several legal avenues to remove them and defend against adverse possession claims:

• Issue a Notice of Trespass
  Serve a formal notice informing the squatters that they must vacate immediately. This creates a clear legal record of unauthorised occupation.
• Apply for an Interim Possession Order
  You may apply to the NSW Supreme Court for an interim possession order. This requires squatters to leave the property while the legal process unfolds.
• Lodge a Caveat
  Filing a caveat with the land registry puts others on notice of your interest in the property. It can prevent squatters from registering any claim to adverse possession as you pursue legal remedies.
• Seek Legal Advice
  Consult with experienced property lawyers to explore all available legal options and ensure that your rights are fully protected throughout the process. Contact Daoud Legal today for a consultation.

Taking swift and decisive legal action is crucial to prevent squatters from establishing the continuous possession needed for an adverse possession claim.

Conclusion

Squatting laws in NSW, governed by the principles of adverse possession, offer a complex yet balanced approach to resolving disputes over abandoned properties. This guide has explored the legal criteria for making a claim, the importance of understanding both squatters’ and property owners’ rights, and the practical steps to prevent unauthorised occupation. By examining real-life cases like Bill Gertos’, it becomes clear how these laws can lead to unexpected outcomes, emphasising the need for proactive property management and legal awareness.

Laws around squatting are complex, contentious, and often confusing. If you have questions about squatting laws or need assistance with a related legal matter, contact Daoud Legal, a trusted criminal law firm in Sydney. Their expertise in property and criminal law can provide you with tailored solutions and ensure your rights are protected.

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