Partner at Cavell Leitch Law
Partner at Clark Boyce Lawyers
How to deal with encroachment
What is "encroachment"?
Encroachment is where you or a previous owner of your property have erected a building and part of the building is on a neighbour's property.
What can I do in this situation?
To remedy the situation you may apply to the High Court or District Court (depending on the value of the land encroached on) under the PROPERTY LAW ACT 1952. The Court has a discretionary power to make a variety of orders to deal with the situation.
You may apply for a court order regardless of whether it was you who constructed the encroaching building.
What powers does the court have?
If the court decides to grant relief (under section 129 of the Act) it may:
- vest in you an estate or interest in the piece of land encroached on, or
- grant you an "easement" (a right of use) over the land encroached on (see How to enforce rights conferred by an easement), or
- grant you a right to retain possession of the piece of land encroached on
The court can make an order if it is believes:
- where you erected the building, that you encroached neither intentionally nor with gross negligence, or
- where a previous owner erected the building, that it is just and equitable to make the order
If the court makes an order, the rights or interests of the other parties affected will be adjusted. The court may also order you to pay compensation to your neighbour for this inconvenience.
Encroachment because of boundary mistakes
If the encroachment occurred because of a boundary mistake, then as well as making any of the orders mentioned above the court also has the power (under section 129A):
- to allow the neighbour to remove the building, and any chattels and fixtures, from the piece of land wrongly built on, or
- if the court allows the neighbour the possession of the building, to require the neighbour to pay you compensation for the building and other improvements made to the land wrongly built on
- To find out the correct boundary lines, you may need to obtain the services of a surveyor. You should also ask a lawyer to search the title to the property to see where the boundary is required to be on the flat plan. Your lawyer will prepare the necessary documents for applying for a court order and will attempt to make the boundary correct on the title.
- If you believe that a boundary of your property has been mistakenly identified, it is preferable that you remedy the situation before you sell the property, as this will avoid many difficulties (see How to sell a house).