When you purchased your property, you should have been shown a copy of the Computer Register (‘Certificate of Title’) for the property. The Certificate of Title includes the plan of the property, which defines its boundaries with neighbouring properties as determined by land transfer survey. There can be serious consequences for a land owner if they discover that they do not actually own all of the land they thought they purchased because they relied on fences and natural boundary markers, rather than the boundaries shown on the Certificate of Title.

An encroachment is where you or a previous owner of your property has erected a structure and part of that structure is on a neighbouring property. This is technically a trespass and the encroaching land owner is legally responsible, whether or not they erected the structure. The definition of structure includes any building, driveway, path, retaining wall, fence, plantation or any other improvement.

The Property Law Act 2007 enables a party to seek relief where such an encroachment exists. Whether or not relief should be granted is an exercise of judicial discretion and must be considered “just and equitable” in the circumstances. Relief can be provided by:

• directing that the structure be removed;
• granting an easement (or alternatively a right of possession for a specific time) over the land under the structure; or
• transferring that land to the person who owns the encroaching structure.

If the wrongly placed structure is a fence, no relief may be granted where the dispute can be resolved under the Fencing Act 1978 (‘Fencing Act’).

The Fencing Act sets out the rights and responsibilities relating to fences between neighbouring properties. It provides a statutory framework to resolve disputes that may arise. This includes (but is not limited to):

• determining what constitutes an adequate fence;
• the cost of building or repairing a fence;
• who is responsible for those costs; and
• who is to do the work.

Land owners can enter into agreements or covenants concerning fencing matters that can be registered against the titles of the affected lands for a period of up to 12 years after registration.

The overhanging of branches of your neighbour’s trees onto your property is also considered an encroachment. You are allowed to cut the branches back to the point where the tree crosses the boundary.  However, it is a good idea to contact your local council to ensure the tree is not a protected tree or talk to your neighbour prior to cutting the offending tree.

If your neighbour is not prepared to do anything, you are able to apply to the District Court for an Order requiring your neighbour to remove or trim any tree:

• if it is causing damage or injury;
• obstructing your view or otherwise reducing the enjoyment of your property; or
• if it is diminishing the value of your house.

If any of these circumstances apply to you, we suggest you seek legal advice regarding your rights and responsibilities. Seeing a lawyer before a problem escalates can save you a lot of anxiety and money.

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