Homelessness is on the rise across Australia.
According to the last census, which took place in 2021, more than 122,400 people across the nation are homeless on any given night. Almost one in four are children and young people between 12 and 24.
What is homelessness?
There is no single definition of what it means to be ‘homeless', other than that it describes a person who is does not have a premises to reside in — which can be caused by a number of factors including joblessness, poverty, domestic violence, poor mental health, substance abuse, and the list goes on.
Link between homelessness and property offences
The link between homelessness and ‘survival based criminal behavior' such as theft and property offences is well documented.
In desperation, people move into abandoned homes, or camp and set up shelters on vacant lands, otherwise known as “squatting”, and in Australia there are laws relating to “squatters' rights”.
Squatters' rights
There is an old saying in legal circles that “possession is nine-tenths of the law”. It's an expression that means ownership is easier to maintain if you have possession or something, or difficult to enforce if you don't.”
And it pretty much sums up the essence of “squatters' rights”, otherwise known as adverse possession laws, which apply only in Australia.
These laws enable a squatter to make a claim on a property if they have occupied it for an uninterrupted and extended period of time.
Adverse possession is governed by common law principles across the nation, as well as the Real Property Act 1900 and the Limitation Act 1969 in New South Wales.
What is a squatter?
Firstly, a squatter is defined as someone who is residing in, or using, an unused and / or abandoned building or property without a contract or agreement with the owner of that property. and not paying a rent or fee to do so.
Potential criminal offences for entering a premises unlawfully
If a person enters a building or property illegally, by breaking in, they can be charged with a criminal offence such as breaking and entering, or trespassing which is an offence under the Inclosed Lands Protection Act.
Inclosed land is defined as that which is surrounded or partly surrounded by a fence, wall or other structure, and has recognisable boundaries.If land is occupied or used in connection with a building or structure, it can also be classified as ‘inclosed land'.
Squatters' rights
A person who ‘squats' in an abandoned property for an uninterrupted period of 12 years exclusively may actually launch a claim to the title of the property.
This involves proving they had actual or intended possession – an intention to exclude land to all others, but only by possession and not ownership.
While property owners might consider this law a bit unfair, it is important to note that under the adverse possession laws, a landowner has a responsibility to use, protect, and maintain their own property.
The law considers the original owner to have rescinded their responsibility and right to maintain the land if it is abandoned for an extended period of time.
Launching a claim on an abandoned property or building can be a complex and time-consuming process and it is not one that many squatters pursue.
Most don't occupy a property with the intention of taking possession of it, typically they live in abandoned homes and buildings or on abandoned property because they have nowhere else to go.
However, if a squatter chooses to make a claim for a property in New South Wales they need to demonstrate:
- Unrestricted, and continuous physical control and occupation of the land for a period of 12 years without force or violence. The time period is 30 years for Crown Land.
- The property was unlocked and unguarded when they took possession.
A person cannot make a claim on land or buildings that they have leased or occupied via an agreement with the registered owner.
Specifically, under laws relating to squatters rights, possession comprises two main components when talking about squatters rights. Firstly, the claimant must have the sole occupation of the property.And secondly, the claimant must prove they have physical control of the land and intended to possess the land to the excursion of all others.The ‘squatter' starts the process of claiming the landby making an application to the ‘Department of Lands'.
Defending adverse possession against a squatter's claim
Property lawyers generally attest to the fact that the best defence against squatters is to secure your property with fences and locks and other security measures. If the property is unoccupied for lengths of time, check on it regularly and ensure it is maintained. Look for signs of unauthorised occupation and remove squatters immediately.
As a rightful owner, you can seek to have a notice of trespass issued to the squatters, informing them that they must vacate immediately. It's also possible to apply to the Supreme Court for an interim possession order which can stop squatters from making an adverse possession claim.
The rightful owner of the land or building has no rights under the law to keep any possessions belonging to a squatter. Doing so may be considered theft, which is a criminal offence.
Homelessness in New South Wales
Being homeless and sleeping rough as a result is not a criminal offence in New South Wales – vagrancy laws were abolished in New South Wales in 1970, but there are still laws which do disproportionately affect people living on our streets.
One such law is the basic move on order, outlined in section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 which gives New South Wales police officers the power to direct a person to leave a public place under a range of scenarios. Refusing to obey what is commonly known as a ‘move on direction' can result in a fine of $1,650.
New South Wales police officers can issue a move on order when a person is obstructing another person, people or traffic, if they're harassing or intimidating anyone, if they're likely to cause a “person of reasonable firmness” to be fearful, or if they're suspected to be in a public place to sell or buy illicit substances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
