When it comes to “pushing the boundaries” in terms of property law, an area that throws up some interesting – and challenging – issues is encroachment.

Encroachments arise when a building, or part of a building, has been constructed across the boundary of the title, typically the likes of eaves, a wall in the wrong place or a lean-to shed.

Firstly, let’s deal with “fee simple” titles, which generally cover residential homes. There are two fundamentals here in trying to sort out encroachments: buildings aren’t easy to move and, secondly, both neighbours are often victims of circumstance, as encroachments tend to be inherited – a mistake a previous owner’s made years, if not decades, previously.

Ah well, it’s been like this for 20 years with no problems, let’s just leave things as they are, you say? Unfortunately, no.

If you do happen upon the fact your property crosses the great divide, you should sort it out.

Because building boundaries aren’t defined on the title and can only be confirmed by a formal survey, encroachments can go unnoticed for years. They’re most commonly unearthed when one neighbour decides to do some alterations close to the boundary, and calls in the surveyor to ensure, ironically, the work isn’t going to encroach.

Coming clean

If you think coming clean with your neighbour, who agrees there’s no need for further action, constitutes a resolution, think again. When it comes to selling the property, prospective buyers could well find out and then the issue comes back and bites you. And, we’re talking some pretty big teeth marks. Under the sale and purchase agreement you’re likely to be required to either remove the encroachment or have the boundary redefined.

Many prospective buyers won’t have the patience to hang around. Deal with it now – properly.

If you do discover there’s an issue, approach your neighbour and do your best to find a workable solution.

In my experience, about 90 per cent of encroachments can be happily resolved between the parties, without litigation. While you may reach your agreement informally, that agreement must be documented formally to have any standing.


Get help

This is not DIY territory. On discovering you have an encroachment issue, consult your lawyer. There may be a myriad of options and approaches, and they will advise you of which best suits your situation.

If an “in-house” agreement can’t be reached, it’s off to court. But whether it’s a decision handed down by the court, or one reached amicably, there are several possible outcomes.

Solutions range from an easement (an automatic right of use of the affected land) to formally adjusting the boundary. Some money may have to change hands, too, to compensate for any adjustments made.

Wherever possible do your absolute best to resolve encroachment issues without litigation. The costs involved in taking the matter to court can be hefty, and often bring the same result as would have been made if a solution had been nutted out between the parties.

Up close and personal

Encroachments are also relatively prevalent in cross lease and unit titles.

Unit titles cover apartment blocks, providing a definition of where your patch begins and ends, including walls, balcony, garden and even, in some cases, air space.

Unfortunately, some buyers bring with them a “quarter-acre section” mentality, which just doesn’t fit within the confines of apartment dwelling. Because everyone’s living in close quarters, unit titles, and those for cross leases (which often apply to residential flats), are quite prescriptive to protect the communal interests.

Whether it’s an apartment or a residential flat, it’s imperative not to assume what’s exclusively yours and what’s for common use. For example: you have a balcony leading from your apartment door. You decide a conservatory would be grand. You build it. It’s possible that, while the balcony is directly outside your digs, that it’s classed as a common area – meaning your lovely private conservatory, in fact, belongs to all your neighbours.

Shaky ground

In residential flats, it’s not uncommon for owners to throw up a garage, carport, or conservatory only to find, again belatedly, the new structure is on common – and shaky – ground.

If you are living in an apartment or flat and you’ve got grand plans to start adding bits, you need to suss out the lie of the land.

First up, go to your lawyer. The ends and cost you need to go to in changing the title might very well be prohibitive, or, perhaps, impossible. And that’s a discovery you don’t want to make too late.

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