While property boundaries in South Australia are generally accepted as correct, many land owners are faced with the issue of what to do with an encroachment. An encroachment can occur where part of a building from one piece of land overhangs or enters on to a neighbouring block of land.
When you purchase land, your interest in that land is recorded on the Certificate of Title and that document has a plan on the reverse which shows the dimensions of your land. However, over time some of those plans show boundaries which are no longer accurate. In addition, neighbours may by agreement or by mistake place structures or fences contrary to the true surveyed boundaries of the land and therefore encroaching onto neighbouring property. Encroachments not only take the form of ground structures but can also include a roof overhang or guttering.
The Encroachments Act 1944 (SA) regulates what happens if an encroachment is discovered.
Under the Act, either party (being you or your neighbour) can apply to the Land and Valuation Court in respect of the encroachment.
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 Court has a fairly broad discretion when it comes to applying a suitable remedy to a given situation and can make any order that it deems fair and just, including:
- the payment of compensation to the encroached upon owner; or
- the conveyance or lease of the land to the encroaching party, however, with fair market value being paid to the encroached upon party; or
- the removal of the encroachment.
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 they were required to remove the encroachment;
- the circumstances in which the encroachment was made.
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 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.
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.
Our lawyers can assist with any issues relating to encroachments. Contact us on 8523 8400 (Gawler) or 8211 6500 (Adelaide) to arrange an appointment for an initial no obligation consultation. Alternatively, send an email to email@example.com and we will contact you.