Building close to your boundary can be fraught with difficulty. Is that the true boundary and, if not, what might happen if you inadvertently encroach on someone else’s land? Can you legally have an encroachment?
An encroachment is a structure (or part of a structure, but not a fence) that is located on or above land not intended for it. An encroachment can also be a structure placed on land by someone who is not the land owner.
As an example, let’s look at neighbours Mr & Mrs Smith and the Jones. The Smiths have a newly-built garage on what they thought was entirely their property. The garage was, however, incorrectly placed and it was built partly on the Jones’ property as well as the Smith’s. This means the Smith’s garage is encroaching on the Jones’ land. Mr & Mrs Jones are livid that the Smith’s garage has created an encroachment on their land and want a settlement of some kind from Mr & Mrs Smith. Legally speaking, this will come under ss321–325 of the Property Law Act 2007.
If the Smiths and Jones can’t reach an agreement to resolve the encroachment amongst themselves then either party, or both, has the following options:
Application to the court for a remedy: The court may grant some sort of remedy (the legal term is ‘relief’) if it considers that it is fair and just in the circumstances. Either the Smiths or the Jones could make an application to the court for relief.
Damages: Granting of a remedy by the court does not prevent the Jones from making a claim from the Smiths for damages. The Jones’ claim may be due to any deliberate or negligent act by Mr & Mrs Smith regarding the placement of their garage as an encroaching structure over their common boundary.
Remedies available from the court
The court may make one or more of the following orders:
- An order to transfer ownership of the land intended for the building. In our example above, this would be an order transferring ownership of the Jones’ land where the garage is encroaching to the Smith’s.
- An order to transfer ownership of the land on which the building has been placed. In our Smith and Jones example, this would be an order transferring ownership of the Smith’s land on which the garage is placed to the Jones.
- An order granting an easement, or right of way, for the encroachment onto Mr & Mrs Jones’ land.
- An order granting the right to possession of land, (while the building still stands)
- An order granting the right to possession of the building or part of it to the party whose land has been encroached on
- An order to remove all or part of the Smith’s garage
- An order requiring payment of reasonable compensation from the Smiths to the Jones for any of the orders above.
Matters the court may consider
When deciding whether or not to grant relief, the court may consider the reason why the structure was placed on the wrong land in the first place. The court will also consider the conduct of both parties and the extent to which either has benefited at the expense of the other party.
The court is not prevented from granting relief due to the person having prior knowledge of the true boundaries or ownership of the land at the time the structure was placed there, or at the time they became the land owner.
It is important to ensure that any structure placed on your property is confined within the legal boundary. Encroachment is a complex legal issue. If you’re facing issues with a possible encroachment, we strongly recommend you are in touch with us early on.
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Copyright, NZ LAW Limited. Editor: Adrienne Olsen. E-mail: email@example.com. Ph: 029 286 3650.