Encroachments

Contributed by Harriet Ketley and current to 1 September 2005

BUILDINGS ERECTED ON WRONG LAND

In some cases, particularly in respect of older blocks of land, disputes may arise as to the correct position of the boundary between neighbouring blocks, or when it is discovered that a building or fence on one person’s land has actually been built on the neighbour’s property.

Where a person makes a lasting improvement on land owned by another in the genuine (albeit mistaken) belief that such land belongs to them, an application can be made to the court under s.123(1) of the Property Law Act 1969 (WA). If this has occurred, and the court believes that it is just and equitable to do so, it can order either that the land on which the building has been made be vested in the name of the applicant, or alternatively, that payment of compensation be made to the person who built the improvement (or their successor in title). Alternatively, the court can order the improvement be removed from the land.

BUILDINGS ENCROACHING ON ADJOINING LAND

Where a building encroaches onto neighbouring land (that is, it straddles the two properties), s.122 of the Property Law Act applies so as to enable either owner to apply to the court for a fair adjustment of rights, including by way of ordering payment of compensation, the removal of the encroachment or the transfer of the land concerned to the encroaching owner.

As with other issues discussed in this chapter, it is preferable that such disputes be resolved directly between neighbours (such as through the joint engagement of a surveyor and/or land valuer to ascertain the correct boundary point and a fair compensation amount for any boundary adjustment) or through mediation, rather than proceeding with potentially expensive and time-consuming court action.