Encroachment of a building on your property
- “Crossing the line”??
Boundary disputes generally
It is clear that the boundaries of your property mark out the dimensions of your ownership. The picture is equally clear with suburban houses which have dividing fences. The same rules apply for duplexes with dividing walls. The picture becomes a bit more complicated when dealing with strata titled properties. The high-rise buildings on the South Perth foreshore and in Crawley are well known examples of strata titled property developments.
Depending upon the age of the strata complex, difficult problems can arise in determining the boundary of one strata unit from either a neighbouring unit, or from the common area of the whole complex. The location of the boundary line may depend on whether the internal wall, the centre of a party wall, or some other boundary marking is relied upon. As a result, the location of the actual boundary line can determine property rights, whether within your unit, the neighbouring unit, or in the common area of the complex itself.
One case springs to mind on this very point. It concerned the proper location of the boundary line at or near the external windows to a unit. The owner of the unit modified the fixed windows in order to allow access to the outside patio and to improve the passage of air into the unit. However, the council of owners of the complex threatened legal action against the unit owner in order to restore the previous windows. The power to modify the windows largely rested upon the question of whether or not they were located within that owner’s unit. If so, they had the right to modify the windows in their unit. If not, the windows were located within the common area of the strata plan (which was controlled by the council of owners).
Yet, even when the boundaries to your property are clearly marked, problems can arise in other forms. For instance, it is possible that a shed or garage (or even a dividing fence), may have accidentally been built within the boundary line of your property.
Encroachment onto your property
Where the whole or part of a building has been erected within the boundaries of your property, it is referred to in law as an ‘encroachment’. It doesn't matter what form the encroachment takes. It could be in the form of a shed or garage, a fence or wall, or even a house.
Years ago, I recall reading in the newspaper that a high-rise building had been built in a way that it jutted slightly over the boundary of a neighbouring vacant site. Although the encroachment was only a few centimetres over the boundary of the vacant site, it created a significant legal problem.
Indeed, the problem was compounded when the neighbour decided to develop the land on their vacant site by building their own high-rise building! It’s not a well-known fact that there is a procedure available under the Property Law Act of WA to remedy such a problem. Either of the land-owners (i.e. the encroaching owner or the owner of the encroached land) can apply to the Court for a range of orders tailored to provide a ‘just and equitable’ solution.
The Property Law Act provides that if the Court is satisfied that:
- The encroachment was not intentional;
- The encroachment did not arise from gross negligence or was not erected by the encroaching owner; and
- it is just and equitable that relief should be granted to the encroaching owner,
Then, the Court may:
- vest ownership in that encroaching part of the land to the encroaching owner; or
- create an easement over that encroaching part of the land in favour of the encroaching owner; or
- give the encroaching owner the right to retain possession of the encroaching part of the land.
Alternatively, if the Court is satisfied that the encroachment was erected due to a mistake as to the boundary line (and if just and equitable in the circumstances), it can grant relief to the:
- encroaching owner; or
- owner of the encroached land; or
- person in possession of either piece of land at the time.
Such relief may be available in the form of:
- vesting ownership for the piece of encroached land upon any of the parties;
- allowing the removal of the encroaching object;
- compensation for the encroachment (to be paid to the encroached owner by the encroaching owner); or
- giving the encroaching owner the right to possess the encroaching land for a specified period of time, subject to terms and conditions that the Court may order.
Acegroup Enterprises Pty Ltd v Sheehan
(Removal of encroachment)
The Defendants built a house after purchasing the lot adjacent to the Plaintiff. Attached to their contract of sale was the lot plan, specifying the correct boundary location. Prior to taking possession of the house, the Defendants engaged a contractor to erect the rear fence. Upon an inspection by the surveyor hired by the Plaintiff, it was found that the constructed fence encroached into the Plaintiff’s property by at least 7 metres. However, the Defendants denied all allegations of encroaching onto the Plaintiff’s land. The Defendants eventually conceded to encroaching onto the Plaintiff’s property. (Indeed, they were unable to show any evidence to the contrary).
Accordingly, the Plaintiff sought orders (amongst other things) requiring the Defendants to remove the encroaching fence at their own expense. The Plaintiff also sought an alternative order entitling him to remove the said fence, and be reimbursed by the Defendants. The Defendants denied any responsibility for encroaching on the Plaintiff’s land. They claimed that they did not knowingly erect the fence (essentially pushing blame onto their contractors). As such, the Defendants argued that they were not liable for the removal of the encroachment.
In reaching their decision, the Court cited an earlier case which considered the circumstances of encroachment including:
- who was responsible for the encroachment occurring;
- the extent of the encroachment;
- the duration of the encroachment; and
- the relevant conduct of the parties.
In relation to fault, the Court found that there was no evidence pointing to the Plaintiff’s fault for the construction of the fence. Instead, it was the Defendant’s fault as they were put on notice of the correct boundary location by virtue of the plan attached to the contract of sale. In relation to the extent and duration of encroachment, the Court found that the Plaintiff acted promptly once it became aware of the encroachment (which was a significant encroachment of 7 metres).
Lastly, in relation to the conduct of the parties, the Court found that the Defendants failed to raise any issue which made it ‘just and equitable’ to refuse the orders sought. In those circumstances, the Court granted the orders sought by the Plaintiff.
Perpetual Trustee Victoria Ltd v Suncorp-Metway Ltd
(Removal of encroachment and parties ordered to share costs of removal)
Sometime in 2009, the Perpetual Trustee (PT) commenced proceedings, seeking orders for the removal of encroaching objects (a shed, carport, eaves and guttering) from PT’s driveway lot. In the alternative, PT sought compensation for the transfer of ownership of PT’s encroached land to S. The estimated costs for removal amounted to approximately $64,000. If removal of the encroachment was undertaken, a further $65,000 would be incurred as a result of devaluation of the property. However, if the encroachment were to be permitted to remain, the diminution of the value of the driveway would only amount to about $5,000.
The issue was whether to order removal of the encroachment or to permit the encroachment to remain and, if so, what compensation should be paid?
The Court had to carefully exercise its wide discretion conferred by the Act. First, it declined to make an order for removal of the gutter as it had no practical effect on the driveway, and the cost of removal would be substantial. However, the Court found that the shed and carport were more substantial encroachments. As such, these encroachments were considered a significant impediment to any future sale of the property. Accordingly, the Court permitted their removal, and ordered the parties to share the cost.
Bunney v The State of South Australia
(Ownership of encroached land vested to an encroaching owner and compensation to be paid)
The encroachment concerned a right of way, which was called a ‘private road’. Bunney (B) was the owner of the private road and the adjoining land to the right of it. The Minister of Education owned the land at the left of the private road, on which a High School was located. Part of the school encroached (about two-thirds) over the private road. Further, the school had a right of way over the private road. As such, the parties did not dispute the encroachment. They agreed that it was convenient to transfer all of the encroached land to the school. However, B sought compensation from the Minister in the sum of about $10,000 for trespass (a claim that the Court found to be ‘exaggerated’).
The issues in this action were whether the Minister should pay compensation to B and, if so, how much?
The issue of compensation was within the ambit of the Court’s wide discretionary powers, as per the South Australian equivalent of the Property Law Act. Notably, the words ‘make such orders as it deems just’ and ‘as it deems proper’ conferred a very wide discretion. As such, the Court took into consideration the purpose of the Act (which was to provide a fair means of adjusting rights). It applied where encroachments occurred - to avoid innocent people from facing detriment because of errors which were not their fault.
In answering the first question, the Court noted that B had purchased the land at a reduced value in light of the existence of the encroachment. In other words, B was essentially seeking compensation for a problem of which he was well aware at the time of purchase. The Court noted that the encroachment was minor, and did not adversely affect the use or enjoyment of B’s land or the private road. Additionally, B was unable to show any loss to him caused by the encroachment.
Nevertheless, the Court held that B was still entitled to compensation. This was because the Minister had, without payment, appropriated the use of B’s land by erecting an assembly hall which extended across the private road. That appropriation occurred with knowledge that part of the private road was not their land. As a result, the Minister had committed a deliberate trespass, which the Court could not endorse.
On the matter of compensatory value, the Court did not find any proven ‘current market value’. Nor was there any significant detriment to the loss of use of the encroached land. In the circumstances, the Court vested the ownership of the encroached land in the Minister. The Minister was also ordered to provide compensation in the sum of $900 due to the deliberate trespass.
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