Property boundary issues such as encroachment claims can become highly divisive fast – and can sometimes turn friendly neighbours into scowling nemeses in the search for a resolution. But what exactly is an encroachment, and what can be done about it?
What is an encroachment?
Encroachment typically refers to a structure, such as a building, shed, garage, fence or wall that either wholly or partly encroaches onto a neighbour’s land. Owners of property affected by an encroachment will often wish to rectify the issue, which depending on the situation might involve:
• Payment of compensation to the owner whose property is encroached upon
• The removal of the encroachment, or
• Conveyance, lease or transfer of the subject land.
In some states such as NSW, an owner whose property is encroaching on a neighbours’ could potentially make an adverse possession claim over the land in question if specific requirements are met.
Why and how does encroachment happen?
A number of situations can lead to an encroachment. In some cases, an encroachment might have been an honest mistake by a previous property owner or neighbour. Perhaps surveying mistakes were made or the boundaries weren’t clear. In any case, if your property has been affected by an encroachment then you’ll likely want to find a suitable resolution.
Tip: If you have a title insurance policy with First Title, you could submit a claim if someone builds a structure on your land without your knowledge or consent.
What to do if you think an encroachment is affecting your land
Two important first steps for most encroachment and land boundary issues will be to speak with your neighbour, and to determine the precise dimensions of each parcel of land so you’re not relying on old land surveys or incorrect information.
Note: boundary walls and fences are subject to specific local government guidelines, so if your question is about boundary walls or how to determine who owns a boundary fence it may be worth checking your local council website.
Encroachment, fence and property line ownership can be a complex area, and working with a property lawyer may be necessary. In the case of a successful claim with First Title, we can support you in various ways to reach a solution.
Encroachment Example #1
In 2020, one of our clients in Victoria found out following settlement that their neighbour’s side fence and carport spouting extended onto the client’s property. The neighbour wasn’t agreeable to the relocation of the fence to the true title boundary, and in fact expressed their intention to claim adverse possession. Our client made a claim to First Title and we reviewed the purchase file to see if there had been disclosure of the encroachments. We sought external legal advice and provided the client with options for a resolution, helping to communicate with the neighbour’s lawyer throughout the process. First Title accepted the claim pursuant to its ‘encroachment’ coverage. We paid a total value of $10,347.50 for this client, including:
• External legal advice
• Value of the loss of land, and
• The boundary re-alignment fee.
Encroachment Example #2
In 2021, one of our clients in Queensland discovered via a survey that a neighbour’s boundary fences and retaining walls encroached onto the client’s property. Upon a claim to First Title, our team reviewed the purchase file and was satisfied that there had been no previous disclosure of encroachment except for dilapidation of some parts of the fences and retaining walls. The neighbour was agreeable to the rectification of the encroachments, but were unwilling to share the cost. First Title reviewed quotes to rectify the encroachments provided by the client. We accepted the claim and covered the entire cost, subject to the exclusions of dilapidated structures, to relocate the relevant fences and retaining walls. The total value First Title paid in this situation was $27,200, saving the client significant costs and stress.
Title insurance can provide peace of mind for property owners and buyers, covering a range of property ownership and land boundary issues. It takes just one affordable payment to take out a policy for your home. Get a quick quote, or request cover today.
