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  • Trust

    Trust

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    • Div 7A Loan Agreement - $65
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    • Family Trust - $165
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    • Family Trust - Update to Allow Change of Appointor and Guardian - $165
    • Family Trust - Update to allow Sole Trustee - $55
    • Family Trust - Update to Exclude Foreign Persons (NSW) - $198
    • Family Trust - Wind up/Vesting - $259
    • Forgiveness of Debt - $121
    • Opening Minutes for the Unit Trust - $33
    • Partnership Deed - $220
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    • The new small business restructure roll-over rules in practice (White Paper) - $55
    • Trust Distribution Minutes Library for 2008/09 - $99
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    • Trust Distribution Minutes Library for 2012/13 - Multi-Use - $350
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    • Trust Distribution Minutes Library for 2013/14 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2013/14 - Single-Use - $110
    • Trust Distribution Minutes Library for 2014/15 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2014/15 - Single-Use - $110
    • Trust Distribution Minutes Library for 2015/16 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2015/16 - Single-Use - $110
    • Trust Distribution Minutes Library for 2016/17 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2016/17 - Single-Use - $110
    • Trust Distribution Minutes Library for 2017/18 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2017/18 - Single-Use - $110
    • Trust Distribution Minutes Library for 2018/19 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2018/19 - Single-Use - $110
    • Trust Distribution Minutes Library for 2019/20 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2019/20 - Single-Use - $121
    • Trust Distribution Minutes Library for 2020/21 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2020/21 - Single-Use - $121
    • Trust Distribution Minutes Library for 2021/22 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2021/22 - Single-Use - $121
    • Trust Distribution Minutes Library for 2022/23 - Multi-Use - $363
    • Trust Distribution Minutes Library for 2022/23 - Single-Use - $132
    • Trust Distribution Minutes Library for 2023/24 - Multi-Use - $363
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    • Trust Distribution Minutes Library for 2024/25 - Multi-Use - $363
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    • Unit Trust - $165
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  • Estate Planning

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  • Commercial

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    • Declaration of Trust (before you buy) - $110
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    • Demand and Summons for Debt - VIC - $88
    • Demand and Summons for Debt - WA - $88
    • Div 7A Loan Agreement - $65
    • Div 7A Loan Agreement for UPE - $65
    • Forgiveness of Debt - $121
    • Loan Agreement (No Security) - $110
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    • Statutory Declaration - $0
    • The new small business restructure roll-over rules in practice (White Paper) - $55
  • Employment

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  • Company

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    • Change Registered Office kit - $33
    • Commercial Lease - $275
    • Company (ELodgement) - $716
    • Company (No Elodgement) - $99
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    • Confidentiality Agreement (Non Disclosure) - $99
    • Co-Owners Agreement - $110
    • Debt Recognition (including pre-Div 7A Loans) - $33
    • Declaration of Trust (before you buy) - $110
    • Demand and Statement of Claim for Debt - NSW - $88
    • Demand and Summons for Debt - VIC - $88
    • Demand and Summons for Debt - WA - $88
    • Director‘s Indemnity Agreement - Compulsory Insurance - $197
    • Director‘s Indemnity Agreement - No Insurance - $197
    • Div 7A Loan Agreement - $65
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    • Employment Contract - $120
    • Family Trust - Wind up/Vesting - $259
    • Forgiveness of Debt - $121
    • Independent Contractors Agreement - $110
    • Loan Agreement (No Security) - $110
    • Minutes for Members to Inspect Books - $33
    • Minutes for Resigning Director - $33
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    • Partnership Deed - $220
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    • Remove a Managing Director kit - $33
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    • Unit Trust - $165
    • Unit Trust - Add New Member Kit - $110
  • CPD Webinars

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    • CPD Webinar - Unlocking Microsoft 365 Copilot - $110
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    • Webinar On Demand - AI in Professional Practices - Risks and Benefits - $110
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    • Webinar On Demand - Employee Share Schemes - $99
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    • Webinar On Demand - Family Law and Trusts - $110
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    • Webinar On Demand - Professional Advisers as Appointor of their Client’s Family Trust - $110
    • Webinar On Demand - Recent Changes in Family Law - $99
    • Webinar On Demand - Sexual Harassment Laws in Australia - $110
    • Webinar On Demand - Small Business Restructures and Director Penalty Notices - $110
    • Webinar On Demand - Tax & Family Trusts - $99
    • Webinar On Demand - Testamentary Trusts 101 - $110
    • Webinar On Demand - Trust Distributions and Section 100A - $99
    • Webinar On Demand - When Directors are Personally Liable - $110
    • Webinar On Demand - Where Death Benefit Nominations Go Wrong - $110
  • All documents

    All documents

    • Acknowledgement of Trust (already own asset) - $165
    • Adopt Committee Recommendations kit - $33
    • Advanced Legal Health Check for Businesses - $18
    • Appoint a Committee kit - $33
    • Appoint an Alternate Director kit - $33
    • Appoint Managing Director & Confer Powers kit - $33
    • Buy a House with Friends Agreement - $110
    • Change Appointor and/or Guardian of Family Trust - $110
    • Change of Name of Family Trust - $110
    • Change Registered Office kit - $33
    • Change Trustee of Family Trust - $110
    • Codicil to change the Executor - $99
    • Commercial Lease - $275
    • Company (ELodgement) - $716
    • Company (No Elodgement) - $99
    • Company Constitution Update - $99
    • Confidentiality Agreement (Non Disclosure) - $99
    • Co-Owners Agreement - $110
    • CPD Webinar - Tax and Cryptocurrency – A Square Peg in a Round Hole - $110
    • CPD Webinar - Unlocking Microsoft 365 Copilot - $110
    • CPD Webinar - UPEs and Div 7A – Implications of the Recent Bendel Decision - $110
    • CPD Webinar - When Directors are Personally Liable - $110
    • Dealing with Forgiven Debts (White Paper) - $55
    • Debt Recognition (including pre-Div 7A Loans) - $33
    • Declaration of Trust (before you buy) - $110
    • Demand and Statement of Claim for Debt - NSW - $88
    • Demand and Summons for Debt - VIC - $88
    • Demand and Summons for Debt - WA - $88
    • Derivative Risk Statement for SMSF - $65
    • Director‘s Indemnity Agreement - Compulsory Insurance - $197
    • Director‘s Indemnity Agreement - No Insurance - $197
    • Disclaimer - Email - $55
    • Div 7A Loan Agreement - $65
    • Div 7A Loan Agreement for UPE - $65
    • Employment - Conduct Issues Letter - $33
    • Employment - Employee Expenses Policy - $55
    • Employment - Performance Issues Letter - $33
    • Employment - Request for Medical Information - $33
    • Employment - Termination Letter - $33
    • Employment - Transferring Employee Letter - $33
    • Employment Contract - $120
    • Enduring Power of Attorney - NSW - $55
    • Enduring Power of Attorney - SA - $55
    • Enduring Power of Attorney - WA - $55
    • Enduring Power of Attorney (Financial, Personal/Health) - QLD - $55
    • Enduring Power of Guardianship - NSW - $55
    • Enduring Power of Guardianship - WA - $55
    • Family Trust - $165
    • Family Trust - Streaming & Bamford Update - $165
    • Family Trust - Update to Allow Change of Appointor and Guardian - $165
    • Family Trust - Update to allow Sole Trustee - $55
    • Family Trust - Update to Exclude Foreign Persons (NSW) - $198
    • Family Trust - Wind up/Vesting - $259
    • Forgiveness of Debt - $121
    • Independent Contractors Agreement - $110
    • Investment Strategy for Self Managed Super 15/16 - $65
    • Investment Strategy for Self Managed Super 16/17 - $65
    • Investment Strategy for Self Managed Super 17/18 - $65
    • Investment Strategy for Self Managed Super 18/19 - $65
    • Investment Strategy for Self Managed Super 19/20 - $65
    • Investment Strategy for Self Managed Super 20/21 - $65
    • Investment Strategy for Self Managed Super 21/22 - $65
    • Investment Strategy for Self Managed Super 22/23 - $65
    • Investment Strategy for Self Managed Super 23/24 - $65
    • Investment Strategy for Self Managed Super 24/25 - $65
    • Loan Agreement (No Security) - $110
    • Minutes for Members to Inspect Books - $33
    • Minutes for Resigning Director - $33
    • Opening Minutes for the Unit Trust - $33
    • Partnership Deed - $220
    • Pension Pack for Self Managed Super - $299
    • Power Of Attorney By Company - $99
    • Product Disclosure Statement (general) - $66
    • Product Disclosure Statement (Pension only) - $99
    • Release of Unpaid Trust Entitlement - $121
    • Remove a Managing Director kit - $33
    • Remove and Replace a Director kit - $44
    • Replace Company Secretary kit - $44
    • Self Managed Superannuation Fund Deed - $165
    • SMSF - Minute to Appoint Administrator - $33
    • SMSF - Minute to Appoint an Auditor - $33
    • SMSF - Minute to Approve Financial Statements - $33
    • SMSF - Minute to Insure The Members - $33
    • SMSF - Update Rules - $165
    • SMSF Limited Recourse Borrowing Arrangement - $330
    • SMSF Restricted Commercial Property Assessment - $695
    • SMSF Restricted Residential Property Assessment - $315
    • Statutory Declaration - $0
    • The new small business restructure roll-over rules in practice (White Paper) - $55
    • Transfer of Shares Kit - $0
    • Trust Distribution Minutes Library for 2008/09 - $99
    • Trust Distribution Minutes Library for 2009/10 - $99
    • Trust Distribution Minutes Library for 2010/11 - $99
    • Trust Distribution Minutes Library for 2011/12 - $99
    • Trust Distribution Minutes Library for 2012/13 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2012/13 - Single-Use - $110
    • Trust Distribution Minutes Library for 2013/14 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2013/14 - Single-Use - $110
    • Trust Distribution Minutes Library for 2014/15 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2014/15 - Single-Use - $110
    • Trust Distribution Minutes Library for 2015/16 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2015/16 - Single-Use - $110
    • Trust Distribution Minutes Library for 2016/17 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2016/17 - Single-Use - $110
    • Trust Distribution Minutes Library for 2017/18 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2017/18 - Single-Use - $110
    • Trust Distribution Minutes Library for 2018/19 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2018/19 - Single-Use - $110
    • Trust Distribution Minutes Library for 2019/20 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2019/20 - Single-Use - $121
    • Trust Distribution Minutes Library for 2020/21 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2020/21 - Single-Use - $121
    • Trust Distribution Minutes Library for 2021/22 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2021/22 - Single-Use - $121
    • Trust Distribution Minutes Library for 2022/23 - Multi-Use - $363
    • Trust Distribution Minutes Library for 2022/23 - Single-Use - $132
    • Trust Distribution Minutes Library for 2023/24 - Multi-Use - $363
    • Trust Distribution Minutes Library for 2023/24 - Single-Use - $132
    • Trust Distribution Minutes Library for 2024/25 - Multi-Use - $363
    • Trust Distribution Minutes Library for 2024/25 - Single-Use - $132
    • Unit Trust - $165
    • Unit Trust - Add New Member Kit - $110
    • Webinar On Demand - Foreign Trust Taxation Issues - $110
    • Webinar On Demand - Advising on Family Trusts in the 21st Century - $110
    • Webinar On Demand - AI in Professional Practices - Risks and Benefits - $110
    • Webinar On Demand - Drafting Estate Planning Documents to meet Litigation Risks - $110
    • Webinar On Demand - Employee Share Schemes - $99
    • Webinar On Demand - End Of Financial Year SMSF Planning 2025 - $110
    • Webinar On Demand - End Of Financial Year Tax Rollup 2025 - $110
    • Webinar On Demand - Family Law and Trusts - $110
    • Webinar On Demand - How Binding are Financial Agreements - $110
    • Webinar On Demand - Professional Advisers as Appointor of their Client’s Family Trust - $110
    • Webinar On Demand - Recent Changes in Family Law - $99
    • Webinar On Demand - Sexual Harassment Laws in Australia - $110
    • Webinar On Demand - Small Business Restructures and Director Penalty Notices - $110
    • Webinar On Demand - Tax & Family Trusts - $99
    • Webinar On Demand - Testamentary Trusts 101 - $110
    • Webinar On Demand - Trust Distributions and Section 100A - $99
    • Webinar On Demand - When Directors are Personally Liable - $110
    • Webinar On Demand - Where Death Benefit Nominations Go Wrong - $110
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Print Version Back

Adverse Possession

Issue: 545 - Wednesday, 14 November 2018

In this Issue

  1. Adverse Possession

1. Adverse Possession

by John Wojtowicz (Director - Law Central Legal)

Adverse possession is sometimes known as ‘squatter’s rights’ and has become a rather hot topic due to a recent occurrence of adverse possession in New South Wales. In late 1998, Mr Gertos happened to notice an empty and derelict house. He made some inquiries about the owner and then inspected the property to satisfy himself that the property was not occupied. The next day he hired a builder to fix up the property and change the locks. He subsequently took possession of the property despite having no legal title of ownership. He organised a managing agent for the property to be rented and signed a lease as the landlord. 19 years later in 2017, Mr Gertos made an application to become the registered property owner under the law of adverse possession. The Registrar-General made several enquiries before giving notice in late 2017 of intention to grant the application. The property was last owned by a Mr Henry Downie who had passed away long before Mr Gertos took possession. Mr Downie’s daughter and grandchildren applied for an injunction preventing the Registrar General from granting the application. The case was then required to go before the Courts to decide who was to have the title to the property. 

On the 30th of October 2018 the New South Wales Supreme Court handed down a judgement on the issue in the case of McFarland v Gertos [2018] NSWSC 1629. The Court enforced Mr Gertos’ right to possession and dismissed the claim brought by Mr Downie’s family. This has led to some public debate as to whether the law of adverse possession should still exist. It has also left many people wondering what adverse possession is and how do you actually establish adverse possession?

What is Adverse Possession?

Adverse possession occurs when someone has an intention to possess the land and has uninterrupted possession of that area for the requisite period of time. If this occurs then the adverse possessor can make a claim to the title of the land. The cases that attract the most attention are those like McFarland v Gertos where someone manages to take the title for a whole property and any buildings on it. However, these cases do not occur all that frequently and are less common than other types of adverse possession. More often, adverse possession will relate to a boundary dispute. A person may make an adverse possession claim over a boundary for many reasons, including: a mistake in the fence line; a miscalculated survey; a mistake in a subdivision; or just an overlooked portion of land. In all of these cases, the person who possesses the land may make a claim for ownership, despite the fact someone else is listed on the title as being the owner. 

What is required to establish Adverse Possession?

In general, to establish adverse possession you must have an intention to possess the land and uninterrupted possession of that land for the requisite period of time. The specific elements which were required to establish adverse possession were looked at by the Victorian Supreme Court of Appeal in the case of Whittlesea City Council v Abbatangelo (2009). In that case, the Court outlined the following principles and requirements:

  • in the absence of evidence to the contrary, the person with title to the land is assumed to be in possession of the land and have the right to possession of the land;
  • if the law is to find someone apart from the title holder was legally in possession of the property, the person must establish they had both factual possession and the requisite intention to possess (both of these elements will be discussed further down); and
  • the possession must continue uninterrupted for the required amount of time.

Factual Possession

To establish factual possession it must be proven that the claimant has taken physical control of the property. For the purposes of factual possession, it is not enough to simply be on the land. The possession must also be open for the public to see. If someone is secretive and attempts to hide the fact they are on the land, they will not be deemed to have factual possession. The possession must also be peaceful. If someone only has possession of the land because they have obtained that possession by force, it will not satisfy factual possession. The possession also needs to be adverse and not by consent of the true owner of the land. If the owner has given someone permission to reside on the land, they will be unable to establish factual possession for the purposes of adverse possession.

Establishing factual possession will depend on the individual facts of the case. Each element needs to be considered in light of individual circumstances. What will constitute open possession in one case, may not establish it in a different case. Parking on the driveway in a built up urban area might establish open and not secretive possession. However parking on the driveway in a rural property which is out of sight of passers-by, may not constitute open possession. In a claim for adverse possession the onus on establishing factual possession lies with the person claiming adverse possession. 

Intention to Possess

The intention to possess is sometimes called the animus possidendi. Whether the requisite intention exists will depend on an analysis of the entire circumstances of the possession. It is not necessary to prove that the possessor had a conscious intention to exclude the true owner of the property. Instead, what is required is an intention to exercise exclusive possession in a manner akin to the intention of the true owner. This will generally be shown where the possessor has undertaken acts which give them exclusive control of the land. One of the most effective acts for establishing the intention to possess is to fence the land off. Where a person has fenced an area off, they will likely have demonstrated an intention to control the land and exclude others from the land. This intention is akin to the intention which would be held by the true owner of the land.

Once it can be established that a person has both factual possession and the intention to possess, the law will view that person as having possession of that land for the purposes of adverse possession. It must then be established that the possession occurred for the relevant period for that state.

Gold and Platinum members read on for information on the required time period for each state and the legal principles for establishing the time period.

Platinum Members, click here to view content

Disclaimer: The content of this Bulletin is general information only. It is not legal advice. Law Central recommends you seek professional advice before taking any action based on the content of this Bulletin.

Related documents:

  • Co-Owners Agreement
  • Family Trust
  • Confidentiality Agreement
  • Commercial Lease

Related webinars:

  • Estate Planning Basics For Professional Advisers 


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