What you need to know about possession claims

Published 11 Mar 2019

In 2018, possession claims hit the news with a peculiar case in which a property developer took possession, and eventually ownership, of a Sydney home. Other names this law is known by include squatter's rights or adverse possession. What is a possession claim and what do people need to know about this strange law?

What is a possession claim?

Adverse possession is where a person takes ownership of a property title after having occupied it for a certain length of time, without having gained the current owner's permission. This means if you've been renting, or living at the property due to some other agreement with the title holder, you're not liable for adverse possession.

In NSW, you can make a possession claim against a Common Law owner if you fulfill certain criteria, such as:

  • Occupying the property uninterrupted for at least 12 years, if you began your possession after 1 January 1970.
  • Holding possession for 20 years if you moved in before the above date.

It's also possible to raise a possession claim against the Crown, although the rules and conditions around this are much more stringent. For example, instead of 12 years' possession, you need to prove occupancy for at least 30.

Proving the essential criteria might gain you the title of the property, however it doesn't remove any rights of the previous owner when they have an enforceable interest, such as easements. 

How adverse possession works

The basis of the squatter's right is that ownership is held only if another person with a stronger claim on the title cannot be found. In the case of a possession claim, the individual coming forward is essentially showing that, due to their extensive occupancy and potential maintenance of the property, they have more right to the title than the other party. 

Possession claims aren't usual, however it's important that property owners are aware of the existence of them. Certain circumstances can put title holders at risk. For example, if a property is caught up in extended estate disagreements, the individuals involved may not be able to legally possess it until the issue is resolved. This leaves the chance of someone else occupying it, and eventually claiming the title. 

If you're concerned about the possibility of adverse possession, or you believe you're in a position to make a claim, it's vital that you receive expert legal advice. Reach out to the team at Malouf Solicitors today. 

Please call us on 02 8833 2000 to speak with a lawyer

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