Australia has a puzzling law. It allows a trespasser to openly and lawfully acquire ownership of the land they have unlawfully occupied. The idea of a cuckoo taking over a magpie’s nest is already outrageous, yet Australian law actually lets the cuckoo become the nest’s rightful owner. This article will walk you through this law so that no one with bad intentions can “snatch” your house.
What is Adverse Possession?
Adverse possession is a real-property law that allows a trespasser to claim ownership of a property if they have continuously and uninterruptedly occupied and used it.
The required period of continuous occupation and use varies between states. In NSW, QLD, TAS and WA the period is 12 years, while in VIC and SA it is 15 years.
When someone occupies another person’s property without authorisation, the owner usually has the right to evict the trespasser. However, if the trespasser remains in possession for a long time and the owner never exercises the right to evict and recover the property, the owner may permanently lose ownership of it.
An adverse possessor does not need to occupy an entire parcel of land or a whole house; adverse possession can also be claimed over a part of the land or property occupied. In other words, if your neighbour moves the fence a few centimetres or metres into your yard and the statutory period passes, that neighbour may also claim adverse possession over the encroached portion of land.
What Must Be Proven?
A person seeking ownership through adverse possession must prove that, over the continuous period of a dozen or more years, they enjoyed actual, open, exclusive and unauthorised use of the property. “Actual” and “open” are self-explanatory. “Exclusive” here means that the trespasser must exercise rights over the property as a true owner would, and no one (including the true owner) may enter or use the property without the trespasser’s consent. Changing the locks and erecting fences are the strongest evidence of exclusivity over a property.
The trespasser’s occupation must not be secret and must not be carried out through violence. “Not secret” means the trespasser must openly use and occupy the property like a real owner and must not conceal that use and occupation from others. “Not through violence” means the trespasser may not use violence to force the owner to leave or give up possession of the property.
Whether or not the true owner is aware of the adverse conduct does not affect the adverse possessor’s ability to acquire ownership. That is, whether the owner is unaware that their property has been encroached upon, or whether the owner is aware but takes no action, the adverse possessor may, provided the other conditions are met, become the legal owner of the property.
In addition, the adverse possessor must show that they intended to possess the property. Building fences and paying for their construction are strong evidence of that intention. The intention can also be shown by erecting buildings on the land, renting the property out to others (collecting rent), planting trees or crops on the land, or keeping livestock.
Terminating Adverse Possession
The true owner can avoid losing ownership by evicting the adverse possessor and re-entering the land, or by negating the possession (for example, by removing fences erected by the adverse possessor). Not long ago, a Chinese couple nearly fell victim to adverse possession. Unable to return to Australia during the pandemic, their property in Melbourne was occupied by a homeless man who changed the door and garage locks and told others he was the owner. Fortunately, the couple learned of the situation through friends and promptly engaged a lawyer to resolve it. The lawyer applied to the court to evict the homeless man and to recover compensation from him for damage to the furniture, thereby terminating the homeless man’s adverse possession of the property.
Land That Cannot Be Claimed Through Adverse Possession
Certain types of land cannot be acquired through adverse possession. These include:
Government-owned land
Public transport land
Land owned by water authorities
