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A Sydney lawyer, his wife and son have stood trial for fraud over an alleged plot to assume ownership of an inner west home, in an unusual case of squatter’s rights meeting the criminal law.
Peter Colquhoun, principal of Rozelle firm Colquhoun & Colquhoun, was charged along with his wife Margaret and son Andrew with dishonestly obtaining the Glebe property by deception.
The rundown property was renovated by Margaret and Andrew after the former owner died, and sold by them in 2022 for $3.67 million.
The trio stood trial this year in the NSW District Court, resulting in Peter being acquitted while Margaret and Andrew were convicted of fraud.
The court heard Margaret and Andrew took steps to assert ownership of the property under the law of adverse possession, known colloquially as “squatter’s rights”.
But the Crown alleged they made false statements in documents to achieve that end, and that Peter, while not accused of making those statements, was party to a joint criminal enterprise with them.
As far as I understand, this is the first time in Australia’s jurisprudence that the criminal law has been invoked to deal with adverse possession.
Lawyer Greg Walsh, who acted for the accused.
High-profile lawyer Greg Walsh acted for the accused. He said his clients were “lovely people” whose lives had effectively been destroyed.
“The doctrine of adverse possession is a very complex matter,” Walsh said.
“As far as I understand, this is the first time in Australia’s jurisprudence that the criminal law has been invoked to deal with adverse possession.”
Peter and Margaret are aged in their late 70s while their son Andrew is in his early 40s.
The Glebe home
At the centre of the criminal trial was the historic home in Glebe.
The owner of the property, Ansis Neilands, died in 1995 and left behind an informal will naming his sister in Florida as beneficiary. If she died before her brother, the will provided the estate would pass to her two sons.
The deceased had a close, longstanding relationship with his next door neighbours, Mr and Mrs Huszti.
They helped care for him after his wife died, and found his will at the property after he died at home.
The court heard Mr Huszti undertook searches to locate the deceased’s relatives, including making enquires with the US Embassy, to no avail.
Firm acts for neighbour
Mr Huszti went to Peter Colquhoun’s law firm in 1996. He was seeking letters of administration from the Supreme Court to allow him to manage and distribute the deceased’s estate as a creditor.
At this stage, the NSW public trustee was also involved because the executor, the deceased’s sister, could not be found.
Mr Huszti wanted to recoup $17,000 from the estate for the cost of caring for the deceased in his final years. The Glebe home, the chief asset, was then valued at $250,000.
District Court Judge Alister Abadee said it was “not disputed that from 6 March 1997 to 2002, the firm and [Peter Colquhoun] searched for the beneficiaries of the deceased’s estate, but those searches were unsuccessful in identifying them”.
The home was rented out from May 1997 to September 2002 for a reduced rate because it was in disrepair, the court heard. The deceased’s neighbours both died in 2002.
The rental agent told Peter Colquhoun in October 2002 that “no tenants have been willing to lease the property” because it “falls below the minimum requirements expected”.
The renovations
In July 2003, Margaret Colquhoun sent a letter to the rental agent that said: “I wish to appoint you to manage the property on my behalf … I am inspecting the property on 16th July and will let you know of my plans to renovate.”
It was initially renovated in 2003 and new tenants moved in, the court heard. From February 2004 to January 2011, $184,798 was deposited into Margaret’s bank account from rental payments.
Margaret paid land tax before and after Andrew Colquhoun and his partner moved into the property in about October 2010, the court heard, and each paid council rates at different times.
In a letter to a neighbour in 2013, Peter Colquhoun referred to the home as “the Colquhoun family property”.
Adverse possession claim
In 2013, mother and son took their first steps to claim ownership of the property under “squatter’s rights”.
Under NSW adverse possession laws, a person who occupies a property continuously for at least 12 years without force or secrecy – meaning it is done openly and visibly – may be entitled to ownership of the land.
In a statutory declaration in November 2013, Margaret Colquhoun declared that she and Andrew had jointly been “in possession” of the property since November 1, 2000.
SQUATTER’S RIGHTS
- Adverse possession, sometimes called squatter’s rights, allows a person to claim a vacant property in some circumstances. They must occupy the land continuously for at least 12 years, and do so without: (a) force, (b) secrecy, and (c) the landowner’s permission.
- There is also a 30-year period that extinguishes the original owner’s claim even if the 12-year limitation period can’t start running for various reasons, such as if the owner has a mental incapacity or it was difficult to discover with reasonable diligence that someone had moved in (e.g. a remote or inaccessible property).
- A dispute between neighbours over a Redfern “dunny lane” and cases about houses in Bankstown and Gymea Bay, along with a slice of land in Balmain, are among recent NSW decisions on squatter’s rights.
She also declared that “the property appeared abandoned” at this time.
Andrew declared in a separate statutory declaration that he agreed with his mother’s assertions and he had entered into possession of the property with her around November 1, 2000.
“This was the original, or first, application for title based on adverse possession,” the judge said.
They made similar claims in later documents. Mother and son obtained the property in about June 2015, when Land Registry Services documents recorded their ownership.
False statements
“The Crown contended that [Margaret and Andrew Colquhoun] … each made false statements in documents,” the judge said.
The false claims alleged by the Crown included the pair’s claim they entered into possession of the property in November 2000 and it appeared abandoned, because the home was tenanted at that time. It was not until 2003 that Margaret started engaging in “acts of ownership”.
The judge said the Crown “acknowledged that its case did not involve any allegation that [Peter Colquhoun] himself engaged in any act of deception”.
The judge found both Margaret and Andrew Colquhoun “engaged in multiple deceptions in documents” between 2013 and 2014 and convicted them of fraud.
The deceptions “expedited the obtaining of the property” near the end of the 12-year limitation period.
However, the judge did not find that Peter Colquhoun was party to an alleged joint criminal enterprise.
Margaret and Andrew remain on bail after their conviction on June 12. They will attend a sentencing hearing on August 3. It is not yet clear if they will lodge an appeal.
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