3 minute read
Legal News
JULIAN PORTER
SOLICITOR AT BARBER PORTER IN COOLUM BEACH SPECIALISING IN ELDER LAW AND ALL LEGAL MATTERS AFFECTING THE COMMUNITY.
Encroachments
THERE is a veritable shopping list of searches, reports and services available to buyers of real property wishing to satisfy themselves that their intended purchase is worthy. One not negotiable for buyers is a ‘survey plan’ which is obtained mainly to ensure that they are purchasing the same piece of land that they have inspected. A survey plan shows the lot size, property shape and dimensions, as well as encumbrances like easements, but rarely do buyers go a step further and arrange a ‘boundary survey’. But we’ve had many cases over the years where this professional service, typically costing around $2500, would have saved a lot of angst. Boundary surveys are most commonly used by buyers where they are intending to develop the land. Ensuring they can fit the planned buildings or additions on the block, whilst allowing for required boundary setbacks, is key to the success of their application. Less often, boundary surveys are done to check if there are any ‘encroachments’ affecting the land. That is whether any part of a building or fixture from one property is intruding onto the adjoining land. Ensuring there are no encroachments from the property being purchased is the primary purpose, but of course it is also useful to know if the neighbours are going to be encroaching on you!
The standard REIQ contract allows a buyer to terminate the contract if there is an encroachment ‘onto or from the land’ which is ‘material’. Less serious matters can be dealt with by compensation, but only if it is claimed in writing before settlement. If the encroachment is not discovered until after settlement (and generally it’s many years later that one neighbour or other obtains a boundary survey) then it is a matter of sorting it out between neighbours and, failing that, litigating in the superior courts.
The easiest way to resolve an encroachment issue is obviously for the encroaching party to remove the offending building or fixture, but of course this won’t be practical in a lot of situations. An agreement between neighbours to formally transfer a portion of land to the encroaching neighbour in exchange for an amount of money can be drawn up by a property lawyer and put the matter to bed.
If the matter does get to court, the judge will have power to order removal, compensation or transfer of land, amongst other remedies. Or they could even decide that nothing needs to be done! Whichever way they do decide, I can guarantee that it will be far more expensive than the cost of a boundary survey.
