A property encroachment occurs when a building, structure or fixture from one property extends onto neighbouring land. This may happen where part of a structure crosses the legal boundary between properties or where an item attached to one property physically occupies part of another person’s land.
Common examples of property encroachments include:
- a garage, extension or other part of a building constructed over a boundary;
- a balcony, roof, awning or other structure extending over adjoining land;
- a fence incorrectly positioned outside the true property boundary;
- tree branches, roots or other fixtures extending onto a neighbouring property.
Some encroachments are minor and may not significantly affect a property owner. However, a substantial encroachment involving a permanent structure can create serious legal issues, affect property value and limit how land can be used or developed.
Encroachments often occur because of boundary errors, inaccurate surveys, misunderstandings between neighbours or construction work being completed without confirming the exact location of property boundaries.
If you believe your property has been affected by an encroachment, our property lawyers in Byron Bay, Ballina, Lismore and Kyogle can provide advice about your legal rights and options for resolving the issue.
How Do I Know If My Property Has Been Encroached?
Before taking action, it is important to confirm whether an encroachment actually exists. Property boundaries are not always accurately reflected by fences, driveways or existing structures.
A neighbour’s building or structure may appear to cross the boundary, but the legal position should be confirmed before starting a dispute.
You may need to:
- review the property title and deposited plan;
- obtain a boundary survey from a registered surveyor;
- compare the survey results with the location of existing structures.
Obtaining accurate information at an early stage can help determine whether there is a genuine encroachment and what steps should be taken next.
What Should I Do If My Neighbour Has Built Over the Boundary?
If your neighbour has built a structure that extends onto your property, the first step is usually to discuss the issue with them.
Many encroachments occur because of genuine mistakes rather than deliberate actions. A neighbour may not have realised that a building, fence or other structure was positioned incorrectly.
Depending on the circumstances, the issue may be resolved by:
- removing the encroaching structure;
- altering or relocating the structure;
- entering into an agreement allowing the structure to remain;
- transferring or leasing the affected portion of land.
Any agreement should be properly documented to ensure both parties understand their rights and obligations. A property lawyer can assist with preparing the necessary documents and ensuring the arrangement is legally effective.
Can My Neighbour Claim Ownership of My Land Because of an Encroachment?
A common concern for property owners is whether a neighbour can gain rights over their land because a structure has existed for a long period of time.
An encroachment does not automatically transfer ownership of land to the neighbouring property owner. However, leaving an encroachment unresolved may create complications, particularly when selling the property, refinancing or carrying out future development.
The legal consequences depend on factors such as:
- how long the encroachment has existed;
- the nature and size of the encroachment;
- whether the parties have reached any previous agreement;
- the applicable property and boundary laws.
Obtaining legal advice early can help protect your ownership rights and prevent the issue from becoming more complicated.
Can an Encroachment Affect the Sale of a Property?
Yes. An unresolved encroachment can create difficulties when buying or selling property.
Potential buyers may be concerned about:
- uncertainty about the true property boundaries;
- future disputes with neighbouring owners;
- restrictions on renovations or development;
- the cost of removing or resolving the encroachment.
If you are purchasing a property, it is important to identify any potential boundary issues before settlement. A property lawyer can review available documents and advise on any risks associated with existing structures.
Resolving Property Encroachments Through Agreement
Many encroachment disputes can be resolved without Court proceedings if both property owners are willing to negotiate.
Possible agreements may include:
- the encroaching owner purchasing the affected area of land;
- granting an easement or other legal right allowing the structure to remain;
- agreeing that the structure will remain subject to certain conditions;
- removing the encroachment and restoring the boundary.
The most appropriate solution depends on the nature of the encroachment, the value of the land affected and the relationship between the parties.
Court Remedies for Building Encroachments in NSW
Where an agreement cannot be reached, a property owner may need to seek legal remedies through the Court.
In New South Wales, the Encroachment of Buildings Act 1922 (NSW) provides a process for dealing with certain building encroachments involving substantial structures.
The legislation allows an affected owner or the person responsible for the encroachment to apply to the Court for an order that resolves the dispute.
The Court may make orders including:
- requiring compensation to be paid to the affected property owner;
- requiring the transfer, conveyance or lease of the affected land;
- requiring the removal of the encroaching building or structure.
The purpose of the legislation is to allow the Court to reach a fair outcome by considering the circumstances of both property owners.
What Factors Will the Court Consider in an Encroachment Dispute?
When determining the appropriate outcome, the Court may consider:
- the location, size and value of the affected land;
- the nature and extent of the encroachment;
- the purpose and use of the encroaching structure;
- the circumstances in which the encroachment occurred;
- any financial loss or damage caused;
- the cost and consequences of removing the structure.
The Court may also obtain evidence from a registered surveyor or valuer to help determine the impact of the encroachment and the appropriate remedy.
Is Compensation Available for a Property Encroachment?
Compensation may be available where an encroachment affects a property owner’s interests, particularly where land is transferred to the owner responsible for the encroachment.
The amount of compensation depends on the circumstances, including:
- the value of the affected land;
- whether the encroachment was intentional or accidental;
- the impact on the affected property owner.
A property owner may also need to consider additional costs associated with resolving an encroachment, including survey fees, valuation costs and legal expenses.
How Can Property Owners Prevent Encroachment Disputes?
The best way to avoid an encroachment dispute is to identify potential boundary issues before construction or renovation work begins.
Property owners should consider:
- obtaining a boundary survey before building near a property line;
- confirming boundaries before installing fences or structures;
- checking building plans carefully before construction begins;
- obtaining legal advice when purchasing property with structures close to boundaries.
Taking these steps early can help prevent costly disputes and protect your property rights.
Frequently Asked Questions About Property Encroachments
What is an example of an encroachment?
An example of an encroachment is where a neighbour builds a garage, extension or retaining wall that extends onto your land. Other examples include overhanging structures, fences placed over boundaries and tree roots or branches crossing onto adjoining property.
Can I force my neighbour to remove an encroachment?
The ability to require removal depends on the circumstances, including the type of encroachment, how it occurred and whether another solution is available. Some matters can be resolved by agreement, while others may require legal action.
Should I get a survey before making an encroachment claim?
Yes. A registered survey can confirm the location of the legal boundary and establish whether a structure actually crosses onto another property.
Conclusion
A property encroachment can range from a minor boundary issue to a significant legal dispute affecting ownership rights, property value and future plans for the land.
The best approach is to identify the issue early, confirm the property boundaries and seek legal advice about the available options. Many encroachment disputes can be resolved through negotiation, but more complex matters may require Court intervention.
If you need advice about a property encroachment, our experienced property lawyers in Byron Bay, Ballina, Lismore and Kyogle can help you understand your rights and work towards a practical resolution.