Squatting involves living in an unoccupied property or on land, without permission to do so. In Australia, 'squatters' rights' involves the 'squatter' obtaining a legal right to the land, as the time passing in which the registered proprietor does not use the land essentially 'extinguishes' their title.
It is often referred to as a 'use it or lose it' legal doctrine. The framework varies from state-to-state in Australia with different time frames applicable before the registered proprietor's title is extinguished.
Adverse Property Rights and Adverse Possession
'Squatters' rights' is a colloquial term, with the law referred to as 'adverse property rights' or 'adverse possession'. Adverse possession is a part of land law in all Australian states. However, it is not recognised as part of land law in the Australian Capital Territory or the Northern Territory.
Ordinarily, the squatter or 'adverse possessor' will need to prove they are in actual possession of the land, have physical control over it (this may be shown through renovations, living in a home, cultivating a garden), and an intention to exclude others (this may be shown through a property being fenced or locks on a residence).
Furthermore, the period of adverse possession required must run without being challenged by the title owner.
An owner can disrupt adverse possession by ejecting the adverse possessor and re-entering possession of the land themselves, initiating proceedings to recover the land, or rejecting the squatter's acts of possession (i.e., removing a fence or locks that have been put in place).
Recently, social media influencer Jordan van den Berg (who posts under the username 'Purple Pingers') faced backlash from landlords after posting about vacant properties, encouraging people to squat in the unused residences.
He had asked his followers to submit addresses of empty properties they've spotted, which could be passed on to those in need.
Whilst he faced extensive criticism, even amounting to violent messages and death threats, van den Berg stated: "squatting is quite clearly not the ideal solution to our housing crisis in Australia, but it obviously makes rich people angry and when rich people are angry, often something gets done...
"Being homeless is incredibly risky. I think you've got to pick your battles."
It is estimated that there could be around 136,000 empty houses in Australia, as outlined in estimates by the Australian Bureau of Statistics in 2023.
The doctrine of adverse possession has continued support in that it is said to encourage title holders to productively utilise their land, increasing economic welfare.
However, it is important to note that there are serious potential criminal offences for entering a premises unlawfully. Where a person enters a property by breaking in, without consent, they can be charged with offences such as breaking and entering or trespass.
The concept of breaking and entering requires an accused to 'break the seal' of the building.
Whilst 'break and enter' evokes images of forceful entry into a premises, it can be satisfied by actions such as opening a closed door or window, and entering, even where these entries are unlocked. This is due to how these actions involve 'breaking the seal'.
If a property owner seeks for a squatter to be removed before their title is extinguished, the squatter may be subject to removal actions, as where a property owner asks a squatter to leave and they stay, the squatter is trespassing.
Here is an outline on adverse property rights, which may also apply to tenants claiming squatters' rights, across each State and Territories of Australia, as well as potential criminal prosecution and penalties.
For more tailored advice and guidance on break and enter offences, we recommend speaking to experienced criminal lawyers for a confidential discussion.
What are Squatters Rights in New South Wales?
In New South Wales, an adverse possession claim can be made against an owner after 12 years. This is outlined under section 27(2) of the Limitation Act 1969 ( NSW).
Notably, it has been held that a series of persons in adverse possession by successive transmissions of possessory title for over 12 years will have the same effect as if one person squatted for 12 years. If the land ceases to be in adverse possession, the period starts again.
However, if the land is Crown land (i.e., owned by the government), it must be proven for a period of 30 years commencing from 1 January 1970. Where the possession commenced prior to 1 January 1970, a period of possession of at least 60 years must be shown.
No claims for adverse possession against the Crown can be made in relation to roads, land left for use as roads or driftways, land dedicated for a public purpose or reserved in a Crown Grant as well as land comprised in an uncompleted conditional Crown purchase or other subsisting tenure.
A claim of adverse possession is made to the NSW Land Registry Services.
An owner who is entitled to possession may forcibly remove a trespasser but is only permitted to use as much force is reasonably necessary, with this subject to if any bodily harm is caused.
There is a range of trespass and break and enter offences in New South Wales, which are governed under the Inclosed Lands Protection Act 1901 (NSW) and the Crimes Act 1900 (NSW) respectively.
If you ask someone to leave your property, and they have no lawful purpose, they must leave or will be deemed to be trespassing.
It is an offence to enter inclosed lands without permission, punishable by a maximum penalty of a $550 fine, or $1,100 fine if the land is a school, childcare service, hospital, or nursing home (referred to as 'prescribed premises').
There are harsher penalties for remaining on land after a direction to leave from the owner/occupier, as well as behaving offensively whilst remaining on the land. A fine of $2,200 is applicable for a prescribed premises, or $1,100 in any other case.
Break and enter offences are largely contained within sections 109 – 113 of the Crimes Act 1900 (NSW). A common offence type within this category is 'break and enter and commit serious indictable offence' under section 112(1), which carries a maximum penalty of 14 years imprisonment.
The elements of this offence that the prosecution must prove beyond reasonable doubt are:
- You broke into and entered any dwelling-house, or other building, or
- You were in dwelling-house, or other building and broke out of it, and
- Whilst therein committed a serious indictable offence.
A serious indictable offence refers to any offence which has a maximum penalty of at least five years imprisonment. This can commonly include stealing, destroying or damaging property, and intimidation, among many other offences.
Squatter Law in Victoria
In Victoria, an adverse possession claim can be made against an owner after 15 years. This is reflected in section 8 of the Limited of Actions Act 1958 (VIC).
Claims are made to Land Use Victoria and lodged with the Registrar of Titles.
To be able to grant an application the Registrar must be satisfied that the registered proprietor's rights, as well as those of any other interested party, have been extinguished and that the applicant is entitled to become registered proprietor.
A claim cannot be made over Crown land (including government roads), rail tracks, water authorities, transport areas, Council land, and any common property affected by an Owners Corporation.
In Victoria, an owner may use force to eject trespassers, but it must only be as much as is reasonably necessary to defend themselves or the property.
Trespass is criminalised under section 9(1) of the Summary Offences Act 1966 (VIC), which provides that it is an offence to wilfully trespass in any public place, as well as any private place or scheduled public place, and neglect or refuse to leave after being warned to do so.
A scheduled public place refers to a school, land use for children's services, premises used for residential services or residential treatment facilities, mental health services, and land held or managed by a cemetery trust of a public cemetery.
A maximum penalty of 6 months imprisonment and/or a $4,807.75 fine (25 penalty units x current value of $192.31) is applicable.
Furthermore, there are numerous offences under the Crimes Act 1958 (VIC) related to burglary and home invasion. The offence of home invasion carries a maximum penalty of 25 years imprisonment.
The prosecution is required to prove that:
- You entered a home as a trespasser,
- You had intent to steal anything in the home, or commit an offence involving an assault to a person in the home or any damage to the home or property (punishable by imprisonment for a term of 5 years or more), and
- You entered the home in company with one or more other persons.
It is also required to be satisfied that you had a firearm, imitation firearm, offensive weapon, or explosive, or at any time while you were present in the home, another person is present in the home (that is not also committing the offence).
It is immaterial whether the person knew that there was, or would be, another person in the home.
What is Squatters Rights in Queensland?
In Queensland, an adverse possession claim can be made against an owner after 12 years. This is contained within section 13 of the Limitation of Actions Act 1974 ( QLD).
The claim is made to Titles Queensland. The Registrar may register the applicant as an owner of all or part of the lot, if they are satisfied that the applicant is an adverse possessor of the lot or part of it.
However, such a claim cannot be made over Crown land, with the Act specifying that Crown land 'shall be deemed not to have been in any way affected by any possession of such land adverse to the Crown' for any period.
The Criminal Code Act 1899 (QLD) specifies that a person is allowed to use force to prevent or repel another person from entering or remaining in their home, if they believe the other person is trying to enter or remain with an intent to commit a crime, and that the use of force is necessary.
Furthermore, an owner can use reasonable force to stop a person from entering, or to remove a trespasser or person behaving in a disorderly way, as long as the owner does not do grievous bodily harm (i.e., really serious injury to the person).
Trespass is a criminal offence as per section 11 of the Summary Offences Act 2005 (QLD).
It provides that a person must not unlawfully enter, or remain in, a dwelling or its yard. A dwelling refers to any building which is used as a residence, for example, a house, unit block, caravan.
A maximum penalty of 1 years imprisonment and/or a $3,096 fine is applicable (20 penalty units x current value of $154.80).
Furthermore, there are offences under the Criminal Code Act 1899 (QLD) related to burglary and breaking and entering. Section 421 criminalises entering any premises with intent to commit an indictable offence, as well as entering any premise and actually committing the relevant indictable offence.
Whilst the former offence carries a maximum penalty of 10 years imprisonment, the latter carries a maximum penalty of 14 years imprisonment. If the offender gains entry to the premises by any break and commits an indictable offence in the premises, they are liable to imprisonment for life.
'Any break' refers to an entry to the premises that involves 'breaking the seal' such as simply opening an unlocked door or window, as well as forcible entry through smashing down a door or using tools.
Indictable offences are offences that can be dealt with in a higher court (i.e., District or Supreme Court) rather than the Magistrates Court in Queensland. They include stealing, assault, and more serious offences such as robbery, rape, manslaughter, and murder.
What are the Rights of a Squatter in Tasmania?
In Tasmania, an adverse possession claim can be made against an owner after 12 years. This is outlined in section 10(2) of the Limitation Act 1974 (TAS).
However, if the land is Crown land, the period is instead 30 years. No claims for adverse possession against the Crown can be made in relation to land held for a public purpose including roads or that which is otherwise reserved in any Crown grant.
The claim is made to the Land Titles Office. The officer of the Recorder will examine the evidence presented to determine whether a claim for title by possession can proceed.
It is nonetheless important to note that it is a criminal offence to enter or remain in or on any land, building, structure, premises, aircraft, vehicle, or vessel, without the consent of the owner, occupier, or person in charge of it.
If the trespass relates to a dwelling-house, it carries a maximum penalty of 12 months imprisonment and/or a $9,750 fine (50 penalty units x current value of $195), otherwise, a maximum penalty of 6 months imprisonment and/or a $4,875 fine is applicable.
If a person is deemed to be trespassing, the court may issue a warrant permitting police officers to enter the premises and give possession of it to the complainant, rather than the offender.
The owner or legal occupier of a property is permitted to ask a person to state their name and home address, if they reasonably suspect that the person is committing a trespass offence, as per section 14C of the Police Offences Act 1935 (TAS).
The Criminal Code Act 1924 (TAS) specifies that it is lawful for the owner of a dwelling-house to use such force as they believe on reasonable grounds to be necessary to prevent the forcible breaking and entering of the dwelling-house by any person, or to eject any person who has unlawfully entered the dwelling-house, and whom he believes on reasonable grounds to intend to commit a crime therein.
This defence also applies to any person lawfully assisting the owner. The Act also criminalises burglary and similar crimes.
Burglary involves a person entering any place as a trespasser, or by means of any threat, artifice, or collusion, with intent to commit a crime therein, as per section 244. A maximum penalty of 21 years imprisonment is applicable.
Squatters Laws in South Australia
In South Australia, an adverse possession claim can be made against an owner after 15 years. This is prescribed in section 4 of the Limitation of Actions Act 1936 (SA).
However, if the land is Crown land, the period is instead 60 years. A claim is made to Land Services SA and is referred to as a 'Part 7A' Application.
Trespass is nonetheless criminalised under section 17A of the Summary Offences Act 1953 (SA), providing that it is illegal to trespass on premises where you are asked by an authorised person to leave, and trespass interferes with the enjoyment of the premises by the occupier.
If the trespasser fails to leave the premises, or again trespasses on the premises within 24 hours of being asked to leave, they are guilty of an offence.
A maximum penalty of a $5,500 fine and/or 6 months imprisonment is applicable if the premises are used for primary production, or a $2,500 fine and/or 6 months imprisonment in any other case.
A person who trespasses on premises must, if asked to do so by an authorised person, give their name and address, with a maximum fine of $1,250 applicable, if this is not complied with.
More serious penalties apply for 'serious criminal trespass' as contained in section 168 of the Criminal Law Consolidation Act 1935 (SA).
Serious criminal trespass occurs if a person enters or remains in a place as a trespasser with the intention of committing an offence involving theft, or against a person (such as assault), or against property punishable by imprisonment for 3 years or more (such as arson).
In places of residence, a maximum penalty of 15 years imprisonment is applicable. However, this maximum raises to life imprisonment if the offence is considered aggravated.
Circumstances that generally give rise to aggravation include if another person is lawfully present and the offender knows of the others' presence or is reckless about whether anyone is in the place, as well as using an offensive weapon.
Law for Squatters in Western Australia
In Western Australia, an adverse possession claim can be made against an owner after 12 years. This is outlined in section 19 of the Limitation Act 2005 (WA).
However, a claim cannot be made over Crown land, with 'any land not affected in any way by any possession of such land adverse to the Crown.'
A claim can be made by an adverse possessor to the Registrar of Titles, referred to as Landgate. They may also institute proceedings in the Supreme Court, where there is an objection to a Landgate application.
It is important to note that it is an offence to enter or be in a place without the consent or the owner or occupier and remain in a place after being requested to leave by a person in authority, as per section 70A of the Criminal Code Act Compilation Act 1913 (WA). This carries a maximum penalty of 12 months imprisonment and/or a $12,000 fine.
A trespasser must, if asked to do so by an authorised person, give their name and address to the authorised person, with a maximum fine of $500 applicable if this is not complied with.
Furthermore, a person may use reasonable force to resist the taking of moveable property by a trespasser, as well as to prevent a person from entering or to remove a person. However, a person must not use force that is likely to cause death or grievous bodily harm in defence of property.
Stringent penalties also apply to burglary related offences. Section 401 criminalises entering or being in the place of another person without their consent, with intent to commit an offence in that place.
A maximum penalty of 20 years imprisonment applies where it is considered an 'aggravated home burglary'. This requires it to be in a home, with an aggravating factor present such as having a dangerous weapon, being in the company of another person/s, or causing bodily harm to another.
If it is a home burglary but not committed in circumstances of aggravation, a maximum penalty of 18 years imprisonment is applicable.