Squatters – Can they really take your house?
Last week the issue of squatters was in the national news media when a property developer who successfully claimed squatters rights on an abandoned Sydney home sold the property for $1.4 million dollars.
With empty homes across Canberra, and an increasing problem with homelessness in the city, it’s easy to see where frustration stems from. At Independent, we can see both sides of the squatting debate. Obviously we advocate for an owner’s right to determine who lives in their property. That said, something needs to be done to address the issue of lack of affordable housing for those suffering from disadvantage.
What is the law? Adverse possession
Banker Andrew James* plans to take possession of an approximately $1 million Redfern house through the New South Wales adverse possession law. According to the law, if a squatter has lived in a property for 12 uninterrupted years they can claim legal possession of it. But it’s not that easy. Occupancy over those 12 years must not be secret, but open and public. They must have taken some measures to secure the home (such as changing the locks), must demonstrate the intention to possess the property (such as paying rates or making repairs) and they must prove they don’t have permission to reside in the building.
There have been a number of successful adverse possession cases interstate. In Melbourne in the early 2000s the local councils began to crack down on private property owners that had absorbed adjacent laneways into their property. They requested the property owners either rip out any building work done, or to purchase the land from the council. A number of these cases went to court, and several owners successfully claimed the land through adverse possession.
There have been some successful claims of private property through adverse possession, although these are almost always for land whose last known owner died in the early 20th century—these plots of land had somehow been forgotten by the owner’s descendants. Most squatters discover these properties by looking for land that hasn’t had council rates paid for it in a long time. They then start discretely paying these rates to establish possession.
The type of adverse possession law owners should be most concerned about is that of their neighbours. Sometimes property boundaries get murky, fences get put in the wrong place, driveways cut over the property next door. If the neighbours have been using your land for more than 12 years without your knowledge, they could successfully make a claim for it, which is why we always suggest that you engage a professional surveyor when purchasing a home, so you know exactly what is yours.
What is the law? Trespass
Most squatters don’t squat with a plan to claim possession of the house. They squat because they can’t reside elsewhere. Until 1970 squatting was not a criminal act and owners who wanted to evict a squatter needed to go through civil court processes. It became a criminal act in response to an increasing number of ‘sit in’ protests, allowing police to evict protesters.
It’s not illegal for a squatter to enter a premises peacefully (such as through an unlocked door), but it is illegal for them to trespass, which means they can’t stay once they’ve been asked to leave by the owner or the rightful occupant.
The latter couple of words mean that squatters do not need to leave if the police ask them to, unless the police carry written instructions from the owner requesting they vacate. The same goes with real estate agents; unless there is proof that the owner is asking them to leave, the squatter has no obligation to. Squatters are well informed of their rights to remain in a place; there are numerous websites dedicated to assisting squatters in Australia.
Argument for squatting
Squatting has been around for centuries, it’s only in the past 50 years that it has been criminalised in Australia, and was only criminalised in England in 2012. On popular squatting website The City Is Ours their argument for squatting is:
“Because it is wasteful and obscene for thousands of properties to lie empty when there are people homeless or struggling to pay rent. Because Office of Housing waiting lists are too long. Because you are sick of dealing with nosy landlords who always hassle you when you are late with rent, but have no problem taking weeks or months or years to do simple repairs. Because no one should get rich by forcing others to pay for the simple necessity of shelter.”
Benefits of a squatter
There are a lot of nightmare stories about squatters and homes becoming destroyed, but that’s one side—the media-attractive side—of the story.
According to the BBC, in the UK squatters are sometimes much appreciated by their neighbours, as they repair derelict housing and sometimes set up cafes, art galleries and workshops in their new homes.
There are a lot of reasons people become homeless, and escaping from domestic violence is just one example. Our system can’t cope with the demand for emergency housing. Plenty of people currently living on the streets would take good care of a home if they were given one at a price they could afford.
The key piece of advice given by websites promoting squatting is for squatters to make any necessary repairs, maintain the gardens, and make improvements where possible so that when they are approached and asked to leave, they can make a good argument to be allowed to stay.
One Australian resident, Anna Fields, lived in a London squat during her time in the UK. The company that owned the empty office building were aware of their presence and gave them permission to stay as they prevented other, potentially less respectful, people from moving in.
Advice to owners
To avoid having a squatter set up home in your empty property, ensure that it is fully secured at all times. If you live interstate, have someone go past regularly to make sure no windows or locks are broken and to look for signs that someone may be living there. Your neighbours are your best means of becoming aware of a squatter early, so ask them to keep a look out.
If you know you’re difficult to get hold of, give your real estate agent a written letter stating that any future squatter is asked to leave, so they can act on your behalf.
If you are faced with a squatter, keep in mind that this person or people have most likely suffered from hardship and trauma. You don’t know what circumstances led to their decision to make your property home and compassion never goes astray.
Document all of your interactions with the squatters and, if you do allow them to stay, document the terms of their residence. Two years ago a landlord was taken to court when squatters claimed he’d given them permission to stay by verbal agreement, which he denied. Landlords could face a fine of up to $22,000 for an unlawful eviction.
Conclusion
Squatting is a contentious issue world-wide, and has been for centuries. According to the BBC, in feudal times, if a house could be erected between sundown and sunrise the occupants could claim the right to tenure and could not be evicted. Life has changed, as have our property laws, but one thing hasn’t. For the poorest of us, life is hard.