Boundary disputes between neighbouring and adjoining properties can occur for many reasons. So how do I know where my boundary lies? If I’m not sure or concerned, what do I do to find out? Who can help me and what laws protect me?
Most property boundaries run adjacent to fences or walls, but there are many other structures or improvements on or near a property boundary such as buildings, sheds, retaining walls, pools, etc. It is always desirable to resolve disputes amicably with your neighbour and preserve good, neighbourly relationships.
Many people now use Aerial imagery websites, such as Qld Globe and Google Maps for determining whether any neighbouring improvement is near or over the boundary, but these are not accurate tools. The images may be distorted, many images are not taken directly above the property and property boundaries displayed cannot be relied upon as an accurate representation of the true boundaries. Existing fence lines cannot be relied upon to be on the actual property boundary. Encroachments often occur when existing fences are used to measure from for building extensions and construction of sheds and other improvements, where those fences were never erected in the correct location to start with. An encroachment can be over land of many different tenures, such as privately owned, state owned (parks or reserves) and also road reserves.
When doubt exists in the actual location of a boundary, the only true way to know where that boundary is positioned is to engage a registered surveyor who will undertake an Identification Survey. The registered surveyor will search historical evidence from previous surveys from which the existing property boundaries can be reinstated and corners marked in their correct position. Improvements/fencing will be located as part of the survey so that their exact location in relation to the boundary can be calculated. Governed by legislation, a surveyor will document all improvements near the boundary. If there is an encroachment then a notification will be issued to all affected parties, describing the nature and extent of all encroachments. Note that any footings buried below ground that support a structure would also constitute as an encroachment and must be wholly contained within the property boundaries.
It is important to note that if an encroachment is found to exist, action to deal with or remove any of the listed encroachments is not mandatory, provided the affected party agrees. This however does not set future precedence should the current or any future owner choose to have them removed. A surveyor can be relied upon to act as a neutral party in dispute cases and the cost of an Identification Survey can be shared amongst the parties. It is not unusual for both parties to engage their own surveyor.
Depending on the nature and extent of an encroachment, it may be very difficult or costly to remove. If both parties agree, a number of options exist:
- An easement could be created over the affected area and compensation paid to that landowner. This would give the owner of the encroachments certain right and access over the easement area.
- A boundary re-alignment is a solution where a new boundary is surveyed and registered on title to clear these encroachments. In this case, a town planning application would be required to be lodged with the local council, associated fees and compensation would also be payable to the affected property owner. A land valuer would need to be engaged to advise on current property values and recommend any amounts payable.
- Not do anything – leave the encroachment as it is. This is dependent on the nature and extent of the encroachment and only if the affected party agrees. For example, if a garden shed roof is slightly over the boundary, action may not be necessary, but remedial action should be taken if a main structure is found to be encroaching.
Disputes also commonly arise over doubt in the location of an existing dividing fence or from a tree that may affect a neighbour’s land. The Queensland Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 sets out your rights and obligations in relation to property fences including the maintenance of existing fences and the sharing of costs between the owners for repairs or construction of new fences. Your rights and obligations in relation to trees is also contained in this Act, such as your responsibilities as a tree keeper as well as your rights to certain actions if your land is affected by a tree or trees on a neighbouring property.
If amicable agreements cannot be made, an application can be made to the Queensland Civil and Administrative Tribunal which handles cases associated with boundary disputes. In this case, the identification survey will become a necessary tool for the tribunal hearing to describe the boundary location.
If you have any questions, contact us – call 07 5631 8000 or send an online enquiry.