You get a letter from your neighbour (or his lawyer) one day stating that your old galvanised iron fence is encroaching on his land by 10 centimetres. “But it’s been there for 60 years!” you say.
Before you start pulling out the fence posts (or your hair), seek legal advice.
The fact that a particular structure like a fence or a garage wall may be encroaching on your neighbour’s land does not in all cases require you to remove it.
The Courts generally deal with encroachments in one or more of the following ways:
- Order the payment of compensation to the land owner encroached upon;
- Order the transfer or lease of the land to the encroaching owner (with or without compensation to the adjacent owner);
- Order the removal of the encroachment by the encroaching owner.
In considering what orders to make, the Court will have regard to the following:
- the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be;
- the situation and value of the subject land, and the nature and extent of the encroachment;
- the character of the encroaching building, and the purposes for which it may be used;
- the loss and damage which has been or will be incurred by the adjacent owner;
- the loss and damage which would be incurred by the encroaching owner if he were required to remove the encroachment;
- the circumstances in which the encroachment was made.
The minimum amount of compensation to be paid to an adjacent owner by the encroaching owner will be the unimproved capital value of the land where the encroaching owner can satisfy the Court that the encroachment was not intentional and did not arise out of negligence. In any other case it will be three times the unimproved capital value.
The Court has a fairly broad discretion when it comes to applying a suitable remedy to a given situation. In circumstances where there has been no deliberate or negligent encroachment by the encroaching owner, the Court will usually weigh up the costs to the encroaching owner if the encroachment were ordered to be removed as against what compensation would be payable if the land were ordered to be transferred or leased to the encroaching owner.
If, for example, the cost of demolishing and moving a garage wall or fence is likely to cost substantially more than the value of the subject land, the Court may be more inclined to order the payment of compensation instead. In some cases, the Court may even order the transfer of the land without the payment of compensation instead of ordering the encroaching owner to pay the costs of realigning the boundary to reflect the position of the boundary fence, which can cost several thousand dollars.
Encroachments often result from the incorrect positioning of a boundary fence or other structure along the boundary. In other cases, encroachments can be prevalent along an entire street where original boundary pegs may have been removed causing consecutive boundary lines to be incongruent with the land title boundaries. In cases where boundaries have been incorrectly recorded on a land title, or there has been some surveying error, it may be possible for the boundary to be rectified upon application to the Registrar of the Lands Titles Office.
The Courts will nevertheless often apply a pragmatic solution to a given encroachment problem. It will also usually encourage the parties to try and resolve the matter on an amicable basis in order to save costs. Mediation is often recommended wherever possible.
What if the encroachment doesn't bother me?
In many cases, the existence of an encroachment may not be of any concern to neighbours who have lived with it for many years, even decades. You should however take note that once you are aware of an encroachment on your land or on the land of an adjoining owner, you are required to disclose that fact to a purchaser if and when you sell your land. In some instances, the existence of an encroachment may find its way onto the land title itself and noted as a kind of encumbrance on your land. This can have the effect of deterring potential purchasers who will usually be concerned to ensure the encroachment is removed or may seek to renegotiate the purchase price for the property once they become aware of the encroachment. This applies equally to a situation where the land being sold is encroaching on an adjoining parcel of land.
Encroachments not only take the form of ground structures but can also include a roof overhang or guttering.
At a time when land divisions (sub-dividing) are becoming the norm, encroachments are becoming increasingly apparent through the use of boundary surveys and even valuations. Those vital few centimetres can be the difference between obtaining development approval and being rejected for falling short of minimum street frontage requirements.
In other cases, an encroachment may prove to be a physical impediment of some description; for example, an encroaching fence may prevent or limit the width of a new carport or garage to be erected on the neighbouring land.
A word of note: a fence which is not on the correct boundary is considered to be an encroachment and is dealt with under the Encroachments Act. Otherwise, a matter concerning a boundary fence is dealt with under the Fences Act and the procedure in that legislation for the erection of a new fence needs to be followed. In some cases both Acts will apply where for example an encroaching fence is ordered to be moved onto the correct boundary but there is a proposal by one of the land owners to erect a different type of fence.
Feel free to contact our commercial team for some legal advice about either an encroachment or fence dispute which you may have before the problem spirals out of control with your neighbour!