When 62-year-old Tracey Higgins found herself locked in a legal battle over the ownership of her family’s four-acre property in Campbelltown, Sydney, she was surprised by who she faced.
It wasn’t someone who had taken up residence. Instead, it was a retirement village developer.
The operator of Australian Retirement Holdings was trying to use squatters’ rights — otherwise known as ‘adverse possession’ — to claim ownership of the property. The hearing began on June 7, 2021, in the Supreme Court of New South Wales.
The property had been in Ms Higgins’ family for generations, and she had spent a third of her life growing up there, between 1966 and 1985.
“I knew the property well. I was a horse rider so I knew all the gullies,” she says.
After the death of the original owner, Ms Higgins’ grandmother, in 1993, the block was forgotten about by the family and left vacant. Ms Higgins moved to northern NSW.
Then in 2019, she learned that the developer was using the land to access its neighbouring construction site, a retirement village.
When Ms Higgins made her objections clear, the developer commenced legal action in the New South Wales Supreme Court arguing that the land should be transferred into its name.
Use it or lose it
Squatters’ rights, a ‘use it or lose it’ legal doctrine, is still regularly raised in Australian courts.
The framework varies from state to state in Australia, but in New South Wales, it takes 12 years before the registered proprietors title is extinguished.
During that time, the possessor has to prove that they were not only using the land but that they also had exclusive possession of the land.
Catherine Barry, a senior solicitor for McCartney Young Lawyers, helped to represent Ms Higgins in the Supreme Court case.
According to Ms Barry, the company claimed that they had occupied the land many years ago and were entitled to ownership of the property under ‘adverse possession’ or ‘squatters’ rights’.
“They closed the gate basically at the front of the road and claimed that the closing of the gate was sufficient to establish adverse possession,” Ms Barry says.
However, the operator didn’t foresee locals coming forward to tell the court that the company wasn’t the only one using the land.
Ms Higgins was grateful for the community support.
“I didn’t know these people and they came forward. They used it as recreation. They’ve walked their dogs down the road to the block and through the bush. … and motorbikes would [be ridden] quite a lot around the area. And yeah, a lot of people were using it,” she says.
There was more evidence against the company’s claims.
“Justice Robb found that since 2014, the plaintiff had been using the road and possibly also the land. However, that period of time is shorter than the requisite 12 years required to claim adverse possession,” Ms Barry says.
The judge said that generally the presence of the boundary fence and gate signal to the world that somebody is in possession of a property.
In this case, the absence of a boundary fence and the absence of proof of a locked gate, coupled with the evidence of the seven community members, indicated there was no conduct to prove that Australian Retirement Holdings had exclusive possession of the land.
The decision was handed down in September 2021 and the ownership remained with Ms Higgins.
Laws vary across Australia
Squatters’ rights don’t apply in every state or territory in Australia. It wasn’t until 1975 that the NSW government enacted legislation to include adverse possession into the Real Property Act.
While other states around Australia followed suit, the territories did not. Squatters’ rights are still not legal in the ACT or in the Northern Territory.
And cases involving squatters’ rights are rarely clear cut.
For example, there was another prominent NSW case involving squatters’ rights with the case of Hardy v Sidoti in 2020, which concerned two adjacent houses in Redfern, Sydney.
The plaintiff, Mr Hardy, had enclosed part of a former ‘dunny lane’ and used it as his own garden for many years.
He’d bought the property in 1998. Then, in 2002 he pulled down his back fence and made the area in between his and the adjacent house into a Japanese-style garden.
In 2018, Mr. Sidoti bought the other property, and the lane was included on the title.
“He says, ‘no, I’m going to pull down the fence and reclaim the land’,” says Ms Barry.
But the court ruled in favour of Mr Hardy because he had used the area of land and enclosed it for more than 12 years, which was sufficient to establish adverse possession.
There was a similar 2019 case in New South Wales, which received international attention because it was so unusual.
In this instance, it was the developer rather than the original owners that won the case.
In 1998, Bill Gertos found an abandoned suburban Sydney home and then spent nearly $150,000 on renovations and repairs, before letting it out.
“He collected the rent, paid rates and taxes on the property over a 18-year period before he then applied to the registered general to have his name registered as the owner of the land,” says Ms Barry.
The original owner objected when Mr Gertos applied for ownership.
However, the court granted it to him under squatters’ rights because he had maintained the property for more than 12 years.
Not a universal concept
Squatters’ rights are not universal but there are many other jurisdictions around the world that have similar laws relating to adverse possession.
Robin Hickey, a law professor at Northern Ireland’s Queen’s University, compares Australia’s laws to those of England and Wales.
“The law relating to what counts as ‘possession’ is essentially the same,” Professor Hickey says.
“I think the result in the Higgins case is comparable to the one that would be reached in other common law jurisdictions that recognise adverse possession.”
But claiming adverse possession in the UK isn’t always as easy as it is in Australia.
“Where land titles are registered, some jurisdictions go a bit further than NSW and make it more difficult or impossible for an adverse possession claim to succeed,” he says.
Instead the possessor of the property must apply to be registered, something they can do after a minimum of 10 years.
However that application will notify registered owners who are then given a chance to object to the claim.
“The aim is to introduce a further layer of protection for registered owners beyond the already high probative bar to claiming adverse possession in the first place; and in that sense to strike the balance of the law’s protection more firmly in the interests of registered owners,” says Professor Hickey.
Since Ms Higgins case has been finalised, she heard from many others who have found themselves in a similar predicament regarding adverse possession.
And she says she would like to see more protection for property owners in Australia in the future.
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