An encroachment occurs when part of a building or fixture from one property intrudes onto adjoining land. The encroachment may simply overhang or be physically attached to the adjoining property. Examples include overhanging tree branches or awnings from a neighbour’s house or a part of a building (such as a garage) that has been erected outside of the property’s correct boundary and is physically situated on part of the adjoining land.

An encroachment may occur due to progression of time (such as the growth of a large tree) or by innocent mistake when property boundaries have not been correctly identified, or property titles incorrectly described during the process of construction.

Whilst some encroachments (such as a few tree branches hanging over a fence) may be minor and of little concern, a substantial encroachment such as the erection of a building over part of a property, can seriously impact the value of the adjoining land.

What can you do about an encroachment?

If you believe your property is affected by an encroachment the first step is to discuss the matter with your neighbour. It is important to first identify the boundaries of the land to confirm that there actually is an encroachment and to ascertain the extent of the encroachment. Boundaries can be confirmed by reference to the deposited plan for the land or alternatively, by obtaining a survey from a registered surveyor.

The situation may easily be resolved by the neighbour removing the encroachment, particularly when the object is removable or retractable.

If the encroachment is of a more permanent nature, a property or construction lawyer can assist in having the matter resolved. This may involve an agreement between the parties to transfer part of the property subject to the encroachment to the encroaching neighbour in exchange for an agreed amount.

Your lawyer will guide you through this process and prepare the appropriate documents to ensure that the transaction is legally recorded.

Court remedies for an encroachment

If the matter cannot be resolved, and the encroachment is a substantial building of a permanent character, it may be necessary for a property owner to proceed through the Courts. Most states have legislation governing the situation when property is encroached by an adjoining land owner’s building. The object of the legislation is to provide a fair and just manner of adjusting the rights between the parties affected by the encroachment.

In New South Wales the Encroachment of Building Act 1922 (NSW) enables a property owner affected by an encroachment (either the encroaching or adjacent property owner) to apply to the Court for a remedy.

The Court has discretion in making an order that is considered just in the circumstances, including:

  • payment of compensation to the land owner who is detrimentally affected by the encroachment;
  • the conveyance, transfer or lease of part of the land subject to the encroachment, to the encroaching owner;
  • removal of the encroachment by the encroaching property owner.

The Court will take into consideration:

  • which party made the application;
  • the location and value of the land affected by the encroachment and the nature and extent of the encroachment;
  • the character of the encroaching building and its use / purpose;
  • the loss or damage suffered as a result of the encroachment;
  • the likely loss or damage that will be caused by removing the encroachment;
  • the circumstances in which the encroachment occurred.

The Court may also refer any matter concerning the application to a registered land surveyor or valuer.

Under the legislation, the minimum compensation ordered for the affected land owner in consideration of the transfer of part of the land to the encroaching owner, provided the encroachment was not intentional, will be the land value of the land taken over by the encroachment. In all other cases, the Court may award three times such land value.

Conclusion

An encroachment may cause little inconvenience or significantly impact upon the affected land. If it is not possible to remove an encroachment, the encroaching party will likely be liable to compensate the affected party and may also be responsible for the that party’s legal and / or Court costs. An encroachment may also give rise to a legal liability if a person suffers injury or loss as a result of the encroachment. It is therefore wise to seek legal advice regarding your rights and responsibilities in respect of any encroachment.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email info@dsplawyers.com.au.