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 are 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 impact negatively on the value of the land. Similarly, fences that do not align with correct title boundaries will cause problems when developing or selling property.

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 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 or your neighbour is unwilling to resolve the issue, you should seek advice from an experienced property lawyer.

Court remedies for an encroachment

Unlike many other jurisdictions, Victoria does not have specific legislation providing a remedy for parties affected by an encroachment. Rather, an owner of an encroaching building commits common law trespass to the adjoining owner who may apply to the Court for a mandatory injunction to have the encroachment removed.

The Court may order removal of the encroachment or alternatively, award damages to the affected party if the encroachment is minor and a monetary sum to compensate for the continuing trespass could reasonably be estimated, and an order for removal of the encroachment would otherwise be oppressive.

Due diligence when buying and building

Landowners may sue for damages or an injunction where there is an encroaching fence wall or other structure affecting their property however such right may expire if legal proceedings are not commenced within 15 years.

If you are affected by an encroachment, you should act quickly. Legal remedies for an owner affected by an encroachment may be lost under the doctrine of adverse possession.

Essentially, the doctrine applies where a person has held another person’s land in a manner that is contrary to the real owner’s true rights for more than 15 years. If legal action has not, during this time, been taken by the person affected by the encroachment, then the person ‘in possession’ may acquire ownership of the land without the need to compensate the true landowner.

The importance of due diligence when buying or developing property cannot be overstated. Checking boundaries by engaging a registered surveyor will minimise boundary disputes or an unexpected decline in the value of your investment.

Conclusion

An encroachment may significantly impact upon the affected land. The doctrine of adverse possession is a complex area of law and may prevent an affected landowner from pursuing a remedy after the expiration of 15 years.

If you are affected by an encroachment or adverse possession claim, you should seek legal advice from an experienced property lawyer.

If you or someone you know wants more information or needs help or advice, please contact us on call 03 5221 7077 or email [email protected].