The weakening of market conditions may complicate the allocation of funds for the acquisition of properties. However, in New South Wales it is possible to own land without paying the price.
The state has an existing law that allows a person to become the owner of the land that she has occupied exclusively for at least 12 years by "adverse possession".
In an article published on Swaab's website, adverse possession or "squatter rights" have been described as a "lost or used" use case. Although this rarely happens and requires you to follow a very technical process, a recent Supreme Court decision in New South Wales in McFarland v Gertos [2018] NSWSC 1629 gave an overview of the consequences that are faced when the land is not "used". "By the owner – especially when family members of a deceased property owner have forgotten a land.
The property in the case is located in Ashbury and originally belonged to Mr. Downie. When Mr. Dowie died in 1947 without leaving a will and naming a family member to take care of his estate, the property was rented by a certain Mrs. Grimes. She remained there until her death in April 1998.
After his death, the property remained vacant for some time before Mr. Gertos took possession of it at the end of 1998.
Mr. Gertos recalled that he was visiting clients of his accounting firm when the property caught his eye. He said the house was vacant and "fallen into disrepair". He renovated and remodeled the house until it became habitable again.
In 2017, Mr. Gertos asked to be the owner of the land by invoking "adverse possession". The Registrar General responded that his application would be approved only if the surviving parents of Mr. Downie did not present the case. the Supreme Court of New South Wales. The family argued that Mr. Gertos should not be registered as the owner of the property and that he was not entitled to register on the title deed of the Ashbury property .
Darke J., who was assigned to the case, reviewed the applicable provisions of the Real Property Act 1900 (NSW) and the Limitation Act 1969 (NSW) and the legal principles applicable to a claim based on adverse possession, including: well-known statement by Chief Justice Bowen in Eq in Mulcahy v. Curramore Pty Ltd [1974] 2 NSWLR 464 to 475. He then made the decision to give the property to Mr. Gertos.
"The possession of the land by Mr. Gertos since about the end of 1998 can be considered open and not secret; peaceful, not by force; and unfavorable, and not with the consent of the true owner. It has continued without interruption until nowadays. In my opinion, it is a possession by a person in favor of whom the statute of limitations can run … ", he said.
Darke J. stated that he could not accept the claims of Mr. Downie's relatives that they were the rightful owners of the Ashbury property. He stated that if a legal personal representative was now appointed for Mr. Downie's estate, that person "could bring and maintain the cause of action to recover the Ashbury property from Mr. Gertos." "
As a result, the claim for compensation of Mr. Downies 'relatives was dismissed by the Court, which was ordered to pay Mr. Gertos' legal costs.
The case demonstrated the possibility of owning property by adverse possession. It also serves as an alarm bell for those who have neglected their property.
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