NSW squatting laws are in the spotlight after a Sydney developer scored himself a $1.6m house (pictured) by changing its locks and renting it out.
Last week the NSW Supreme Court awarded Bill Gertos the ownership rights to an inner west home he renovated and leased out after finding the property vacant in 1998.
Mr Gertos made an application for title to the Register-General under the NSW Real Property Act in 2017 using “adverse possession”, or squatting laws.
Adverse possession was developed under common law (court-made law) and allows a person to gain title to a property if they have remained in that same property for a certain amount of time and nobody has disputed their possession of the property.
Adverse possession under NSW Squatting Laws
In Queensland and NSW a squatter can apply for ownership if they have lived in a property without consent of a legal owner for 12 years.
To claim in adverse possession, an applicant must prove actual, factual possession of the land to the exclusion of all others, and must be able to show an intention to possess the property.
Factual possession can be proven by showing an appropriate amount of physical control.
Physical control can mean placing a lock on the property, or fencing the property off to the exclusion of others which is the type of behaviour one would expect from the true owner of the property.
According to Mulcahy v Curramore Pty Ltd  2 NSWLR 464 adverse possession must be “open, not secret, peaceful not by force; and adverse, not by consent of the true owner”.
Intention to own and use the property
Mr Gertos pleaded he found the Ashbury home empty with “the rear door was off its hinges and placed to the side” while visiting a client on the same street.
After changing locks, Mr Gertos repaired and renovated the home and rented it out, spending about $35,000 on repairs in 1998 and $108,000 on renovations in 2014.
Affidavits published in the media, stated Mr Gertos received legal advice that if he could occupy the property, pay the bills and maintain it for 12 years he could claim “adverse possession”.
In 2017, Mr Gertos requested that the Registrar-General register him as the owner under NSW squatting laws.
A judge found: “Mr Gertos succeeded in taking and maintaining physical custody of the land, to the exclusion of all others, and he has assumed the position of a landlord.”
Mr Gertos was successful despite a challenge to the NSW Supreme Court from the relatives of the last listed owner – a deceased man who bought the property in 1927 but abandoned it after WWII.
The family argued they were unaware they were entitled to the property until they were contacted by police in 2017 and that the deceased left the property due to white ants.
The court rejected the family’s case and application for an injunction and ordered them to pay costs for Mr Gertos’ defence.
Media reports stated Supreme Court Justice Rowan Darke found Mr Gertos had sufficient evidence he invested money into fixing the home, paid taxes on it and leased it to rental tenants.
“I am comfortably satisfied that since about late 1998 Mr Gertos has been in factual possession of the land with the intention of possessing the land,” Justice Darke told the court.
Archaic or useful property laws?
Mr Gerots was able to claim titled using a very old common law dating back to the 1900s in NSW.
NSW squatting laws helped illiterate populations who were unlikely to keep land title documents to prove title by demonstrating occupation and land use.
This property law does have legitimate use in some cases.
You may have a property which has passed through family members over many generations without anyone realising there is no official title of deed.
In this instance the ‘squatter’ may be able to prove adverse possession under NSW squatting laws.
A genuine civil trespasser can be dealt with through police or by other civil litigation actions.
Barry qualified as a lawyer in South Africa in 1986 where he practised in commercial law till the end of 2001.
In 2002 Barry and his family moved to Australia.
In 2004 Barry completed a Graduate Certificate in Applied law which was necessary to be admitted as solicitor in Queensland.
In 2006 Barry obtained his Masters in Law degree.
Barry practices in commercial law with focus on leases buying and selling of businesses, business structuring and business succession.
Attwood Marshall Lawyers can assist property owners to claim title under NSW squatting or adverse possession laws.
We also have a dedicated Conveyancing Department for standard property transactions.