Gertos told the NSW Supreme Court court he came across the Ashbury home in 1998. The property had been unoccupied since its last tenant died the same year . Gertos said the house was open and "the rear door was off its hinges and placed to the side". He changed the locks, made some repairs and began renting it out.
Gertos said he spent around $35,000 on repairing the house in 1998 and $108,000 in 2014 on further renovations. There are reports that the property is now worth around $1.6 million. Gertos applied to the NSW Registrar-General in 2017 under s 45D(1) of the Real Property Act 1900 (NSW), seeking to to be named the proprietor of the fee simple - owner - of the land. An application under s 45D is a means whereby a person in adverse possession of land under the Act can in certain circumstances supplant a registered proprietor. In October 2017, the Registrar-General gave notice of its intention to grant the application.
That was challenged by the family of the registered owner, Henry Thompson Downie, who died in 1947. He apparently without leaving a will. and no representative has since been appointed in respect of the deceased estate (ie there has been no grant of administration). Downie's daughter and two grandchildren claimed they had to leave the house sometime after World War II because of a white ant infestation.
Gertos submitted that the plaintiffs lacked standing to seek the declaration about his entitlement to be registered on the title. He submitted that in any event the evidence showed that he has been in adverse possession of the property since about late 1998 and any claim to recover the land from him would be barred pursuant to the relevant provisions of the Limitation Act 1969 (NSW).
The Court states
Mr Downie acquired the property at 6 Malleny Street in 1927. One of his two children, the first plaintiff, gave evidence that Mr Downie and his wife lived in the property with the children until shortly prior to the Second World War. The first plaintiff deposed that at that time Mr Downie announced that the family had to leave the house because it was “full of white ants”. The family moved to a house in Queen Street, Ashfield, for a time, and to other houses thereafter. The first plaintiff deposed that the family never returned to 6 Malleny Street and neither did the family ever talk about it. The second plaintiff, a grandson of Mr Downie, gave evidence to similar effect, including that the property was “never discussed in terms of ownership”. Mr Downie died in 1947. He was survived by his wife. There is no evidence that he left a will. As I have already mentioned, no grant of administration has been made in respect of Mr Downie’s intestate estate.
It appears to be undisputed that at the time of Mr Downie’s death the property was subject to a tenancy in favour of a Mrs Grimes that was likely a “protected tenancy”. The evidence is clear that Mrs Grimes continued to reside in the property, regularly paying a small rental to Ford Real Estate, until shortly prior to her death, which occurred on 19 April 1998. Evidence was adduced by the plaintiffs from numerous persons who at one time or another were residents of, or frequent visitors to, Malleny Street. Some of those witnesses gave evidence that after Mrs Grimes died the property remained vacant for a period, the estimates ranging from “a short period” to “a number of months” to “approximately one year”, before new tenants moved in. Some of the witnesses gave evidence to the effect that over the course of the years that followed, various tenants occupied the property from time to time. Some of the witnesses gave evidence that they did not know Mr Gertos and had never met him.
Mr Gertos was formerly an accountant by profession. He gave evidence that he came to notice the property at 6 Malleny Street when he went to the street to visit clients for whom he prepared taxation returns. He stated that the property appeared to be unoccupied, and falling into disrepair. He said that he gained the impression that the building was empty and that no one was maintaining it, and further that this state of affairs continued for over a year. Mr Gertos says that his curiosity was sparked, and that he spoke to one of his clients about the property. He recalls being told that an elderly lady had lived in the house for many years but had moved out or died, and since then the property had been vacant. Mr Gertos says that in 1998 he concluded that the property was in fact vacant and unoccupied.
Mr Gertos deposed that many years earlier he was employed by a senior accountant who had spoken to him about his own experience of obtaining title to a property “by adverse possession”. Mr Gertos says that in 1998 he had it in the back of his mind “that this may be a case where it may be possible to obtain title to the property by possession of it over a sufficiently long period of time if nobody else was interested in it”.
Mr Gertos deposed that he instructed a solicitor (Mr Murphy) to ascertain the name of the owner, whether the owner was alive, and if not whether any grant of probate or administration had been made. He says that inquiries were made but did not yield any useful information. Mr Gertos recalls that Mr Murphy (who is now deceased and whose former firm was unable to locate any records of the retainer) gave some advice to the effect that Mr Gertos would need to occupy the property, pay the bills for the property, and look after it as if it was his own for at least 12 years, or perhaps 14 years. Mr Gertos also recalls Mr Murphy saying that if Mr Gertos could prove to the Registrar-General that he had been in possession of the property to the exclusion of others for the necessary period, he could request the Registrar-General to register him as the owner of the property.Darke J found Gertos had sufficient evidence he invested money into fixing the home, paid taxes on it and leased it to rental tenants.
I ;am comfortably satisfied that since about late 1998 Mr Gertos has been in factual possession of the land with the intention of possessing the land, In essence, Mr Gertos succeeded in taking and maintaining physical custody of the land, to the exclusion of all others, and he has assumed the position of a landlord."The family was ordered them to pay Gertos's legal costs.
In 2015 the NSW Land and Environment Court held Gertos personally liable for demolishing a heritage row of shopfronts on Parramatta Road in Sydney. See for example Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51 and Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186.
Leichhardt Council had approved a redevelopment on the condition the facade was preserved. Gertos and his development company Geitonia disregarded the order, resulting in Gertos being fined $150,000 and his company another $50,000.
Brisco J stated
At the end of the day Mr Gertos stands out as far more culpable than the other defendants because they offended because of what Mr Gertos did,
The sentence needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so.
The planning system would be ineffective if developments were allowed to continue without, or in contravention of, development consents.The ABC reported that
Solicitor for Mr Gertos, James Jordan, apologised to the judge for his client's non-attendance in court, and said he had another engagement.Perhaps he was crying all the way to the bank. Special leave to appeal was not granted in Gertos & Anor v Inner West Council [2016] HCASL 338
