Did you know it is possible for you to become the owner of a property which is not yours? Although difficult to prove, ‘squatters rights’ (based on the principles of adverse possession which apply to old system land) allow someone to legally take ownership of land under Torrens Title if they can prove that they should be registered as the owner of the land.
Adverse possession is the process whereby a person takes possession of a property for 12 years or more and applies to the Registrar-General to become the registered proprietor of the property. In saying this, there are a number of requirements which need to be met in order for one to make a successful claim for the title of a property.
McFarland v Gertos [2018] NSWSC 1629
The case of McFarland v Gertos demonstrates how one can successfully make a claim to become the registered proprietor of a property which they have never owned.
Facts
The registered proprietor of a property in Ashbury, Henry Downie, passed away in 1947 leaving no will. At the time of the death of Downie, the property was leased to a lady who remained a “protected tenant” until her death in 1998.
Bill Gertos came across the property in 1998 and has been living there ever since. Since occupying the property, Gertos has changed the locks of the property and made several improvements in order to make the property habitable. Following the upgrades made to the property, Gertos openly advertised the property for rent, paid all outgoings and appointed a real estate agency to manage the property.
In 2017, Gertos made an application to the Registrar-General to be recorded as the registered proprietor of the property pursuant to section 45D(1) of the Real Property Act 1900. The Registrar-General indicated that the application made by Gertos would be approved, however the surviving relatives of Downie commenced proceedings in the Supreme Court of New South Wales, seeking an injunction to restrain the Registrar-General from registering Gertos as the registered proprietor of the property and a declaration.
Decision
Justice Drake considered the evidence brought forward, the applicable provisions of the Real Property Act 1900 and the Limitation Act 1969, together with the legal principles which apply to adverse possession and determined that Gertos was entitled to be recorded as the registered proprietor of the property.
When making his judgment, Justice Drake cited the well-known statement of Bowen CJ in the case of Mulcahy v Curramore Pty Ltd [1974] which provides:
“Possession which will cause time to run under the Act is possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner…”
Justice Drake was comfortable and satisfied that Gertos had been in possession of the property with the intention of possessing the land and concluded with the following statement:
Mr Gertos’ possession of the land since about late 1998 can be regarded as open, not secret; peaceful, not by force; and adverse, not by consent of the true owner. It has continued without interruption to the present day.
In light of the above, Justice Drake rejected the claims made by Downing’s relatives who were claiming to be the registered proprietors of the property.
Conclusion
Whilst adverse possession claims are often rare and can be quite difficult to prove, the case of McFarland v Gertos highlights how land can be lost and claimed.
For more information on the above, please contact Peter Crittenden or Ben Wong on (02) 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
