By Paul Gregoire and Ugur Nedim
On her father’s passing in 1999, Mary Willis inherited two houses on a street in the Sydney inner west suburb of Rozelle.
These were numbers 5 and 7 on a street, while her brother, Martin, inherited numbers 9 and 11 on that same street. But the pair had been estranged since 1985, and when they saw each other in court in 2002, Martin was aware that Mary had been living in a dilapidated house, a number 55 on a street in Kensington.
Willis had a tenant in Rozelle No 5 up until January 2000. However, after her real estate agent asserted that $60,000 worth of upgrades were needed, Willis chose not to relet the property, and the agent continued to pay the council fees on her behalf until 2014.
Meanwhile, Yael Abraham had been living in the NSW Southern Tablelands town of Burradoo, with her adopted children. In October 2009, she visited Sydney to see some abandoned houses: Willis’ properties Rozelle No 5 and No 7, along with Kensington No 55, where Willis was said to be residing, although Abraham didn’t see her there. Willis actually residing at No 55 was later doubted.
In Rozelle, Abraham found No 7 was being rented out to a Louise Fisher, however No 5 was empty, and there were signs of past squatters having spent some time there. Abraham claims she then spent the next two years visiting Sydney and doing up No 5. She’d changed the locks to the premises but didn’t fix the broken front window, so it continued to appear abandoned.
Abraham moved to a house in Sydney’s Zetland in 2011. But she stored some items at Rozelle No 5. In mid-2012, her daughter, Chantal, noticed No 7 was also vacant, and Abraham started doing up both properties, and her daughter used them as a place to study. And when council and water bills began arriving in Willis’ name in 2012, Abraham dropped them in the letterbox at Kensington No 55.
Open and continuous possession
Squatters’ rights, or the doctrine of adverse possession was inherited from British common law into the Australian system, which includes the New South Wales system of law.
The doctrine of adverse possession under Australian common law maintains that a person can claim ownership of land they’ve openly and continuously possessed for at least 12 years without the previous owner’s permission.
Section 27 of the Limitation Act 1969 (NSW) outlines that if an owner attempts to reclaim their land otherwise occupied by someone else, they, as the plaintiff, must do so prior to the limitation period of 12 years, while section 38 stipulates that adverse possession occurs when the person occupying the property, often referred to as a squatter, has possessed the land for the entire limitation period.
NSW Supreme Court Chief Judge in Equity David Hammerschlag explained in the 2023 case State of New South Wales versus Carver that adverse possession deals with the “capacity of the squatter”, who needs to be in physical possession of the property and have the intention to possess it.
“Physical possession requires an appropriate degree of physical control, which depends on the circumstances, in particular the nature of the land and the manner in which it is commonly used and enjoyed,” Justice Hammerschlag set out.
As for intention to possess, this means a squatter seeks to own a property to the exclusion of all others, “including the owner with the paper title, so far as is reasonably practicable and so far as the process of the law will allow. The relevant intention is that of the claimant”.
The possession of the land, the justice added, must be peaceful and not acquired by force. The possession must be open but not agreed to by the property owner, and it must too be continuous.
Willis filed a 13 December 2023 statement of claim with the NSW Supreme Court in respect of seeking possession of the two properties she was the registered owner of, those being Rozelle No 5 and No 7.
Abraham gave up her claim of possession to Rozelle No 7 in April last year. But she resisted the claim that Willis made for No 5, as she asserted, she’s been in continuous possession of that property for more than the 12 year limitation period.
Squatters case comes falling down
Fisher, the tenant at Rozelle No 7 from 2005 until 2012, later outlined in an affidavit for the court that she’d not noticed anyone coming and going from No 5, over the years prior to her leaving Rozelle, and neither did her neighbours. She’d continued to visit No 7 to collect her mail, and she stated that No 5 continued to be in “state of disrepair” until she stopped visiting in 2014.
But Abraham’s ex-partner Ronald Rundle can remember visiting No 5 or waiting outside from 2011 onwards. He remembers Abraham taking items and furniture there as well. In 2013, when she was living in Vaucluse, he recalled her moving furniture to Rozelle. And Abraham’s sister, Magdaleine Jimenez, testified in court that she’d first visited in 2010, with items being stored in 2011.
An old friend of Abraham’s William Cassidy told the Supreme Court that he’d remembered visiting No 5 in 2010, when no one was living there, and Abraham did have tools and cleaning equipment present. Cassidy visited No 5 ten times over 2010 and 2011 and observed Abraham storing furniture there, and on a 2023 visit, he saw her continuing to store furniture and using it as a Sydney base.
Abraham told the court that she began visiting No 5 every month since 2009 through to 2011. She said she’d been cleaning it up, changing the locks, but didn’t fix the front window. She then began storing her nonvaluable property there. Chantal said she started living part time in both No 5 and No 7 early on, and in 2015, she moved in full time, with No 7 being her “primary place of residence”.
Supreme Court Acting Justice Micheal Elkaim said it was difficult to reconcile Fischer’s testimony and Abraham’s version, which was backed by four others. He explained that he had no reason to doubt the input from the two men, who appeared reliable witnesses, however he added that he could say the same for Fischer, despite her evidence being “diametrically opposed”.
His Honour too raised some discrepancies, however, which involved March 2011 photos of No 5 that aren’t consistent with furniture being stored at the property, or that it was cleaned up. And a 28 March 2011 Skipps on Wheels Property Maintenance invoice addressed to Willis’ agent made out to the amount $506 had covered gardening, removal of debris and installing mesh on a window.
Willis put to the court that the maintenance people wouldn’t have been able to clean up the rubbish from the property if it had already been done and was being used for storage. Based on the photos and the invoice, Justice Elkaim said he considered Fischer’s version correct.
“I also note here that my ultimate conclusion will be that using No 5 as a storeroom does not substantiate possession by the defendant as adverse possession,” his Honour found. “The differences between the witnesses are therefore of much lesser significance.”
As for the council rates, Willis wasn’t aware that her real estate agent had stopped paying them in 2014, until 2019. Rates, his Honour explained, had gained some importance after Abraham called the council, and pretended to be Willis in order to pay off the outstanding rates in May 2024, which appeared to the court as Abraham attempting to bolster her claim.
Further evidence had Martin Willis in contact with Abraham in 2016, at which point she responded to his enquires as to why Chantal was living at No 7, which involved having an arrangement with his sister. Abraham also contacted the real estate property manager in April 2023 to tell her that she had an arrangement with Willis to have Chantal live at No 7 and she, or a friend, living in No 5.
The premises was not under adverse possession
In his 27 March 2025 final findings, Justice Elkaim found that while Abraham had a degree of control over No 5 since 2011, he was “not satisfied that it was physical possession of the type required”. If Chantal had lived in No 5, this would have been different, however using the place as a storeroom and occasional place of study, was not using it as a residence.
Chantal had told the court that she commenced living in No 5 in 2016 but that was long after the limitation period was claimed to have commenced.
Another issue his Honour raised was that possession of a property claimed under adverse possession must be open, so actual and visible to others. However, Abraham had left the front window broken to convey that the place was still abandoned, and this had been the same with the roof, which had only been fixed within the last five years.
This was also compounded by the fact that Abraham was telling people that she had Willis’ permission to live there, and even if Chantal moved into No 5 in 2016 and was leaving and entering from the front door, the pretence of having the permission of the registered owner continued.
So, No 5 was not in adverse possession because it was not used as a residence until at least 2015. The assertion that No 5 had been used as storage for furniture since 2011 was disproven.
The court found Willis didn’t have open possession, but only a degree of control of the property over the time, and the rates were paid only after proceedings had commenced.
His Honour ruled on 27 March 2025 that Mary Willis was still the owner of Rozelle No 5, while Abraham’s crossclaim was dismissed, and she was ordered to pay Willis’ court costs.
