In some circumstances – YES?!
You may think that it is an old wife’s tale when you hear if someone lives in a property long enough, they can become the new owner of the property without paying for it. The reality is that the law may allow a squatter to become the owner of the property. While this seems clear cut, many property owners may be wondering whether this extends to a neighbour making a claim for part of your land.
What is adverse possession?
Adverse possession is the term where a person who has illegally occupied land for a period of time, eventually becomes the registered owner of the land without having to pay to purchase it or compensate the original owner. General requirements for adverse possession include:
- possessing and using the land as if they were the registered owner (for example, occupying it illegally or remodelling the property without the owner’s knowledge or consent);
- using the property for a continuous number of years – someone cannot occupy the property for 2 months, leave for 1 month and repeat this cycle a few times until they meet the minimum time period; and
- possessing the property without the owner’s consent and not sharing possession of the property with its’ registered owner.
If someone can make a successful adverse possession claim, the effect will be that the title the registered owner had over the property will be destroyed and they will no longer be the owner of the property. The applicant will become the new registered owner over the property in dispute. However, adverse possession claims will not destroy a third party interest held in the property. For example, registered interests will still remain on the registered title of the property.
Queensland’s Legal Position
The Land Title Act 1994 (Qld) does allow someone to make an adverse possession claim (section 99). An adverse possession claim must be made to the Titles Registrar. The applicant must meet the following requirements:
- the land cannot be land owned by the State, the local government, or an entity representing the State or the local government (section 98 Land Title Act 1994 (Qld));
- have possessed the property for at least 12 years (section 13 Limitations of Actions Act 1974 (Qld)) – the time will start on the day you took illegal possession of the property;
- during the 12 years occupying the property in a way that you:
- physically have possession of and/or control over the property;
- have possession in an open and peaceful manner (a stranger would assume you had ownership of the property); and
- did not have the consent of the registered owner to use the property.
Can someone make an adverse possession claim for part of your land?
Adverse possession claims may not be restricted to a squatter claiming an interest in the whole of the property. Something that is not generally considered is the possibility of a neighbour making a claim to own part of your land. A common example is where a dividing fence is not placed on the boundary line, instead it is placed inside a neighbouring property’s boundary. The question arises that if there is no dispute over the placement of the fence for the 12-year period, can the neighbour who has access to the land they do not own make an adverse possession claim.
Each state has differing availability for making a part possession claim. The Land Title Act 1994 (Qld) is very clear that for Queensland property, you cannot make a claim on part of a land. Section 98 provides that an application for adverse possession cannot be made for only part of a lot. The section further goes on to state an adverse possession claim cannot be made for possession arising out of an encroachment, which is when a fixture intrudes on a neighbouring land. Your neighbour will not successfully be able to claim part of your land as their own especially if the part they are claiming comes as a result of an encroachment.
What you should do to avoid an adverse possession claim:
- If you believe a deceased loved one may own an unknown property, instruct a lawyer to order an owner name search. This search will allow someone to look up a person’s name to find out the number of properties they own by themselves or with someone else.
- If you own a property (especially an investment property), diarise to attend the premises to inspect it every couple of years. Constant inspections allows property owners to monitor whether someone is unknowingly occupying your land.
- Undertake improvements to the properties you own everything few years. Something as simple as fixing minor defects to doors or repainting the exterior will evidence to the court that not only did you intend to maintain your interest in the property but improvements show an intention to increase the value in the property.
- Most importantly, if you identify someone occupying your property, provide them with a written notice to vacate the property. This will stop the 12 year continuous and uninterrupted possession requirement.
If you have any questions or require assistance with a conveyancing matter in Queensland, then please contact the property team at My Property Protect for more information.
Written by
Kayleigh Swift, Associate
http://www.mypropertyprotect.com.au/
kayleighs@mypropertyprotect.com.au
(07) 3506 0002
AND
Chloe Skubis, Graduate Law Clerk
http://www.mypropertyprotect.com.au/
admin@mypropertyprotect.com.au
(07) 3506 0002
About the authors
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
Chloe Skubis is a Graduate Law Clerk in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.
