Rogers v Registrar General of NSW [2024] NSWSC 590 was an adverse possession claim concerning a cottage owned by the late Joseph Louis Saric at Gymea Bay. Adverse possession, also known as “squatters’ rights,” occurs when someone occupies land that belongs to another person. Squatters typically move into what appears to be an abandoned property, improve it, and reside there for an extended period. Surprisingly, these squatters may assert property ownership under specific conditions known as “adverse possession.”
Adverse possession requires continuous possession of the land for at least 12 years, proving factual, open and peaceful possession without consent, and demonstrating an intention to possess the land to the exclusion of others, including the legal owner. After 12 years of possession, the adverse possessor can apply for title to the land and become the outright owner.
McFarland v Gertos [2018] NSWSC 1629 concerns a property in the Inner West Sydney suburb of Ashbury. The original owner of the property, Mr. Henry Downie, passed away in 1947. Mrs Grimes rented the property, and she continued to live there under a protected tenancy after Mr Downie’s death until her death in April 1998. Following her death, the property became vacant, with the Defendant taking possession of it in late 1998, claiming continuous possession since then.
During this time, the Defendant changed the locks, made various improvements, and renovated the property to make it livable. After allegedly possessing the property continuously for over 14 years, the Defendant applied to be named the registered owner of the land under section 45D(1) of the Real Property Act, which allows uninterrupted possession of a property for 12 years to make the possessor the registered owner. The Registrar-General’s notice of intention to grant the Defendant’s application prompted descendants of Henry Downie (the Plaintiffs) to take legal action to stop the Defendant from becoming the registered owner.
The Plaintiffs argued that
- they were entitled to the land through intestacy,
- their right to recover the land was not barred as the cause of action did not arise until the Defendant sought to register the land,
- the Defendant did not have the necessary intention to possess the property, and
- because Henry Downie was deceased, the running of the limitation period was suspended.
The Court dismissed these arguments. While the Plaintiffs claimed that the Defendant only intended to rent out the property and did not seek to possess it, the Court pointed out that the Defendant’s actions indicated otherwise. Making significant investments in improving the property, changing locks, and paying water rates and land taxes all demonstrated an intention to possess. Additionally, the property was almost continuously rented out, indicating uninterrupted possession.
The Court also rejected the Plaintiffs’ argument that the Defendant’s possession was “secret” and not open, which could have been used to challenge the validity of the Defendant’s adverse possession. The Court found that the fact that the neighbours had never seen or interacted with Defendant did not indicate secret usage. The payment of outgoing costs and taxes was sufficient evidence of open possession.
Because the relevant limitation period for bringing an action had expired and the Defendant had a valid claim of possession over the property, the Court ruled in favour of the Defendant. As a result of the decision, the Defendant became the registered owner of a property he had never officially purchased.
Background
In Rogers v Registrar General of NSW [2024] NSWSC 590 Joseph Louis Saric (the deceased)  was born in Dubrovnik in 1922 and died in Kogarah in 1968. He had migrated to Australia in February 1946. His migration records referred to Josip Šarić, Josip, Joseph or Jozo Saric or Sarich, and Joseph Louis Saric.
The Court held that it is common for European migrants, who had to navigate English language bureaucracy, to have their names recorded in various ways in different documents. The Court accepted that there is no doubt that all these references pertain to the same individual.
The deceased died intestate. Searches for certificate evidence have proven unproductive. The Court held that the searches and enquiries were extensive.
Mr Paul took possession of the cottage on or about 1 January 1969. He had both the factual possession and the requisite intention to possess the cottage and, while unnecessary as a matter of law, treated it as though he owned it. He stayed at the cottage, rented it out, paid for all the relevant outgoings and did not let anyone go into it without his permission as tenant or invitee.
The exact nature of the deceased’s relationship with the late Mr Paul is not clear; the relevant evidence establishes that Mr Paul organized Mr Saric’s funeral and subsequently treated Mr Saric’s fibro cottage in Gymea Bay as his own until his passing in 2018; the land on which the cottage is situated is the subject of these legal proceedings.
The plaintiff, Mr. Michael Rogers, is a solicitor and the executor of Mr. Paul’s estate. In fulfilment of his duties as executor, Mr Rogers has initiated these legal proceedings to assert two primary claims: first, that the hearing should proceed in the absence of any legal representative for Mr Saric, and second, that Mr Paul had acquired ownership of the cottage through adverse possession, making the property a part of Mr Paul’s estate.n
Mr Paul rented the Gynea Bay cottage to third parties in 1995. The precise relationship between Mr Paul and the deceased must have been known to each other because Mr Paul was the informant on the deceased’s death certificate. How Mr Paul came to rent the cottage to third parties is unknown.
The decision
Part 6A of the Real Property Act (which includes s 45D(1)) commenced on 1 June 1979. However, for that section to apply, possession need not have commenced after its commencement. The Court made that conclusion following s 45D(1), which refers to “where a person has land” “at any time after the commencement of this Part”.
Nevertheless, the Court is satisfied on the balance of probabilities that Mr Paul’s possession was not by consent. The absence of any identifiable legal personal representative supports the conclusion that the deceased estate never consented to Mr Paul going into possession. The deceased’s eligible heirs might object that they never had the opportunity to consent. Still, it is not a requirement that the paper owner can dispossess the adverse possessor. Furthermore, there is no evidence that Mr Paul went into possession under a lease, licence or any other consensual relationship with Mr Saric’s estate or heirs.
Mr Paul’s possession of the cottage was open. There was evidence that his neighbours saw him and that he interacted with them about the cottage (including its fencing). The suppliers of water and electricity and the Council knew about him, and his wife observed him treating the cottage as his own. Mr Paul’s possession was peaceful.
However, the Court found that Mr Paul’s possession was not by consent and declared that the plaintiff was entitled to become the registered proprietor of the Gymea Bay property.