SQUATTERS RIGHTS: CLAIMING AN ISLAND (OR A PIECE OF ONE)

In 2013, two men successfully claimed two blocks of land on Moreton Island by adverse possession (also known as “squatters rights”). The blocks were valued at a combined total of $1.3M. 

Mr. Lees and Mr. Moore became the registered owners of the blocks after a process apparently spanning 35 years. 

According to Queensland Civil and Administrative Tribunal documents, Mr. Lees and Mr. Moore discovered the abandoned lots in 1978 and undertook title searches which revealed that the previous owner of each lot had last been registered on title in the 1860s. Mr. Lees’ then-wife and Mr. Moore took possession of the blocks that same year (Ms. Lees later transferred her half interest in the blocks to Mr. Lees). 

Over the years boundary lines were cleared, fences erected, weeds killed, and rates and land taxes paid. Mr. Lees and Mr. Moore eventually built a holiday house on one of the blocks and a barbecue on the other.

After a failed application in 1991, Mr. Lees and Mr. Moore’s lodged an application in 2012 with the Registrar of Titles to become the registered owner of the blocks. The application took over a year to process and finally, in April 2013, it succeeded.

So, how does someone gain squatter's rights?

Adverse possession occurs where someone other than the registered owner of the land, the Squatter, claims to be the owner based on their possession of the land.

There are a few elements that must be established to succeed in an adverse possession claim, being in summary:

Intention

The Squatter must establish that they had an intention to possess the land. They must show that they intended to exclude the rest of the world (including the registered owner) from the land.  This intention can be demonstrated from physical acts such as erecting fencing.

Possession

The Squatter must be in "factual possession". They must exercise physical control of the land. Possession must not be in secret and must not be taken by force. Examples of "factual possession” include paying rates, residing on the land, renting the land, and erecting fencing.

Period of Possession

The Squatter must be in possession for long enough to bar any action by the registered owner. Currently, that requires 12 to 30 years of consistent possession, depending on the circumstances.  In Mr. Lees and Mr. Moore’s case, the Supreme Court decided that 30 years of adverse possession was required.

Procedure for Registration

The Squatter must follow a specific process set out by the Land Title Act including lodging application with the Titles Registry and giving notices to the registered owner and the public.

If the application succeeds, they will be registered as the legal owner of the property.

Conclusion

It is certainly a time-consuming and complex process, but it is possible to claim ownership of land through squatter's rights if all elements are met.

The content of this blog is to provide comments and a general guide on this topic. Professional advice should be sought about specific circumstances.

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