Can Squatters Really LEGALLY Take Someone Else's House And Call It Their Own?

When you hear the word "squatter", your mind probably turns to a someone who is homeless or down on their luck, hiding in a run-down old dump which nobody wants.

You probably don't expect to it to cover a property developer who spotted an empty $1.6 million home in Sydney's inner west, renovated and put it up for rent.

But that's what developer Bill Gertos did, and in a Supreme Court judgement handed down this week he was granted ownership of the home, despite a challenge from relatives of the last registered owner.

The Ashbury home, which a property developer is now the legal owner of, after "squatting" for more than 12 years. Photo: Steve Hart, Ten News

Gertos told the court he spotted the Ashbury home in 1998 while visiting a client across the road. It was vacant and "the rear door was off its hinges and placed to the side".

He changed the locks the next day, renovated it, and rented it out.

Now it belongs to him.

So how do "squatters' rights" work?

It's actually called "adverse possession", and the rule applies in every state in Australia, although not in the ACT or Northern Territory. The law says someone who possesses a property for a set period of time, without keeping it secret, can make a claim to have ownership of the property.

In Victoria and South Australia, the period is 15 years. In New South Wales, Queensland, Western Australia and South Australia the period is just 12 years.

Adverse possession or "squatters rights" explained, state by state. Graphic: tendaily
But isn't squatting illegal?

In short yes.

But according to Sydney barrister Pat Lane, after a period of illegal squatting, squatters can suddenly have rights.

"If a person just comes onto the property and squats there, they are trespassing, and the owner can take proceedings to get rid of them by an order for possession," she says.

"But, if that owner doesn’t take proceedings in the (designated) period... then that squatters position can mature into actual ownership, because the owner loses their right to take proceedings to get them out."

Police can also only charge someone with trespass if they have a complaint from the actual owner of the property. And in these cases, the owner usually can't be found.

Why does this law even exist?

The concept came from from British common law, which is hundreds of years old and was adopted by Australian states.

"I think it's an archaic bit of law", says David Sachs, a solicitor and the principal at Sachs Gerace Broome.

"But there's a complete lack of motivation to re-write it, because -- in the end -- it doesn't really matter. I wouldn't put in the top 100 issues for law reform."

"There are always these old laws that hang around in the statute books."

It seems simple. Should I just find an empty house and get started?

Good luck. Successful cases are as rare as hens' teeth.

"If it's a box ticking exercise, there are a lot of boxes to be ticked," explains David Sachs.

"You've got to do it for 12 years (in NSW)... you've got to have a fair bit of stamina."

Also, the person who owns the house could pop up after 11 and a half years, and ruin your plan.

"Anyone who wants to challenge that has had plenty of time to do it," says Sachs.

"And people have got to have been aware that there was someone occupying it, he says.  "It can't be a secret thing, it's got to be a public thing."

In the case of Bill Gertos, he carried out extensive renovations, advertised it for rent, and had tenants living in it for decades.

It this rule fair?

Barrister Pat Lane reminds us of a saying we've all heard before.

"There is a philosophy that if you don’t use it, you lose it, and that’s very much the philosophy that underpins this kind of law."

"If an owner isn’t going to take steps to use and enjoy the property, then the law says that squatters... may have the ability to mature that occupation, into ownership."