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Encroachment | What are your rights?

You may find yourself in a situation where you or your neighbour may have an encroachment – where a building or structure intrudes or overhangs on the neighbouring property. In most cases, these issues are resolved informally between the parties or the encroachment is removed. If however, the encroachment is permanent in nature, or the cost of removal is significant, one of the parties may make an application to the court seeking relief in respect of the encroachment.

Relief may include:
  1. Payment of compensation
  2. The transfer of the subject land to the encroaching owner
  3. The grant of an easement, right or privilege in relation to the subject land; or
  4. The removal of the encroachment.

When determining the appropriate relief, the court will consider and balance all of the relevant factors including:

  • the situation and value of the subject land
  • the nature and extent of the encroachment
  • the character and purpose of the encroaching building or structure
  • the loss and damage caused by the encroachment
  • the loss and damage that would be incurred for removing the encroachment; and
  • the circumstances in which the encroachment was made.

If you are looking to purchase a property and fear that a building or structure may not be within the property boundary, we highly recommend you engage a surveyor to undertake a survey of the land before you proceed.

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