Festooned about any public thoroughfare or meeting place at this time of year is a colourful array of sign-on advertisements for Soccer, Rugby Union, League and AFL sporting clubs. Each code claims their sport to be “football” but which one actually owns the name? Turns out all of them do. Union evolved when a student at a British school called Rugby College decided to pick up the ball and run it into the goal instead of kicking it. The variation was called “Rugby Rules” and so began the game they play in heaven. League evolved from a disagreement over how injured Rugby players should be treated during a match spawning what TV broadcasters call the greatest game on earth and AFL, at least according to Victorians, has finally fulfilled mankind’s destiny of complete and final evolution! Soccer fans of course continue to lament how so many promising sportsmen and women have sadly lost their way! While each of our footy codes happily chort along with friendly banter over where the “football” title truly belongs, the position becomes very different when it comes to land ownership.
Ownership of land is not always permanent. A trespasser can make a claim for the title of a piece of land and their claim can be successful if they have occupied it for a considerable period of time. This is generally referred to as “Squatter’s rights” but in law it is known as adverse possession.
While at first glance it may seem unfair for the original owner to lose their rights, it must be considered that with land ownership comes an obligation to use, maintain and defend it. A new occupier may have acted in reliance in their long standing use of the land and it could also be unfair to allow the original owner a benefit when they neglected the land in the first place. Successful claims result in a reissue of the title certificate over the part or the whole of the lot claimed in favour for the new occupier.
In practice, the operation of adverse possession is to actually tidy up mistakes which have been over looked. For example, claims commonly occur in residential properties where it’s suddenly discovered the long-standing fence boundary has been misaligned with the title boundary and the client is seeking to defend the current boundary line of their property. Claims also commonly arise where the original owner of the land is long dead or building proposals are denied because the property is found to be encompassing an old unused road or creek bed. These are all issues which are based in squatter’s rights principles.
Generally in private land, the original owner will lose their legal right to evict the squatter where the squatter has been occupying the land in question for longer than 12 years. Without the recourse to evict, the squatter is free to remain on the land. In effect the squatter is now the new owner and the option is available for the squatter to make a claim to the Land Registry office to have the title of the land transferred to them. Usually, this is without compensation to the original owner unless a court has specifically ordered otherwise. In determining whether the title should be reissued, the Land Registry looks at a wide range of factors specific in the circumstances.
If the squatter does not make a claim for the title, they are still entitled to remain on the land. The squatter can sell the right to occupy the land to a new squatter. However, without the title in their name, they cannot sell the land itself.
The reason for this is that with land ownership comes an obligation to use, maintain and defend it. If an owner has neglected his right over the land, he has been careless and may lose his right to evict a trespasser thus relinquishing his ownership to the land. Different rules apply to easements and crown land but generally for private land, the time frame to assert ownership is within 12 years. Claims can be made for transfer of ownership of the whole of a block of land or just a part of it where for example a boundary fence has been negligently left in the wrong position.
A common misunderstanding of “squatters rights”, is that if a land owner allows a person to use their land under a lease or arrangement for a long period of time, then that person occupying the land will eventually be able to make a claim for the title. This is not correct. A claim from the long time tenant of the property would fail because the land owner had given permission for the occupancy under the long term lease arrangement. With the permission for the land owner to occupy the land the tenant is not using it in any way which is adverse to the owner and so there is no grounds to make the claim. In the same way, if a person was occupying a property for free (ie. not paying any rent) but was doing this with the full knowledge and consent of the land owner then again no claim arises. Where the evidence however, shows the land owner knew or ought to have known of the trespasses and just didn’t care to investigate or act to evict them, then a right to claim will probably be established.
The 12 year time limit does not necessarily run from the most recent squatter. If there have been multiple squatters and one has sold his right to another squatter, the time limit will include both squatters. However, a successful claim requires that the new occupier of the land making the claim has not stopped being in the possession of the land adversely during this time.
In preventing claims from squatters, it’s important for land owners to establish their occupation of the land. One of the most effective ways to do this is to simply fence it off and provide signs saying to the effect “No Entry unless as authorised by [Your Name]”. Another tip is always keep expenses related to the land, such as council rates, up to date and not to allow anyone else to pay them on your behalf.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.