HHG Legal Group’s Murray Thornhill and Special Counsel Matthew Lilly discuss adverse possession laws in Australia.
What are “squatter’s rights” in Western Australia, and how can someone claim land through adverse possession?
In Western Australia, adverse possession allows a person to claim legal ownership of private land if they have occupied and exclusively controlled it without the owner’s consent for a sufficient period, usually at least 12 years. The possession must be open, continuous, and inconsistent with the rights of the registered owner. However, Crown land cannot be acquired by adverse possession, and landowners can protect their property rights by actively managing and securing their land.
Ownership of land is the great Australian dream yet it is becoming harder and harder for the average person to achieve. However, some people have developed “innovative” thinking of how to achieve this goal.
The recent ‘bizarre squatter’s rights case’ in Sydney is such an example in that case, a developer took possession of an abandoned home, renovated it, leased it out for 19 years, and subsequently applied and successfully received legal title to the home.
In less brazen cases some people have successfully taken possession of strips of land, driveways, gardens and successfully become registered on the title to the land on which they have squatted.
In Legal speak, the ‘squatter’s rights’ referred to above is actually the operation of the law of Adverse Possession.
What is Adverse Possession?
The basic principle of Adverse Possession in Western Australia law is that if you squat on land long enough, as required by the law, you can claim legal title to the land on which you have squatted.
This can be achieved by an application process through Landgate or by squatters applying for an order providing them with registered title.
How can you tell if a person has adversely possessed land?
Adverse possession is the continuing possession of private land without being the registered landowner with the accompanying entitlement to exclusively possess the land. It is not possible to adversely possess Crown Land (see below).
Some of the evidence required to establish adverse possession of private land is:
- possession of land for a continuous period usually of 12 years or more or in some cases 30 years where the registered proprietor has a disability;
- possession of the land without the consent of the registered landowner;
- exercising physical control over the land in a manner that is inconsistent with the possession of the true owner;
- exercising ‘exclusive control’ over the land; and
- the intention to exercise control over the property known to the world.ie. the possession and control is open, not secret.
How common is Adverse Possession?
Adverse possession disputes are not uncommon.
In practice, where boundaries are not properly surveyed, marked or adhered to, then a relatively small mistake becomes, over time, a basis for those boundaries to be legally changed.
In a high profile 2020 case relating to two neighbouring properties in City Beach, repeated mistakes in fencing the boundary between the properties saw the owners of the properties battle it out in the Supreme Court to work out whether the wedge of land on “the wrong side of the fence” had been adversely possessed by one of the neighbours. The Supreme Court, Court of Appeal ultimately held that it had.
Can you Adversely Possess Crown land in WA?
Pursuant to the Limitation Act 2005 (WA), it is not possible to take possession of Crown land by adverse possession.
An example is the beachside “shacks” on Western Australian coastline in areas such as Wedge Island – despite residents of some of these shacks having lived in the dwellings for many decades, no legal property rights belong to those inhabitants.
How can I prevent my land from being Adversely Possessed?
In short, exercise your property rights on a regular basis.
This could include:
- preventing third parties from occupying your land (eg. put up fences, locked gates etc.); and
- removing any squatters from your land, by court order, if so required.
Some large commercial property owners (eg. of office towers) will on a regular basis close off all the common areas of their land to exercise their property right of exclusion. They will usually take a recording of this activity so it can be used in evidence in the future if any person tries to make a claim of adverse possession overt this land against them.
How can HHG Legal Group help?
We understand that can be a complex area to navigate and that often the issues and circumstances of possession are not as clear-cut as they first appear.
Our team is always available to help you with any questions that you may have. Contact us today by emailing Murray Thornhill murray.thornhill@hhg.com.au or Matthew Lilly at matthew.lilly@hhg.com.au or calling us on (08) 9322 1966.