Boundaries. Whether it be borders separating sovereign states, the edge of the cricket oval or simply relationships between work colleagues, boundaries are a necessary part of life. One of the more (potentially) fraught examples are the boundaries of a parcel of land. Disputes over where one property ends and another begins can be a veritable flashpoint for feuds between neighbours, causing stress, anxiety and disquiet in a community. There is also the significant financial cost associated with engaging surveyors and lawyers in such disagreements, particularly where buildings are found to have been built on land not belonging to the owner (known as ‘encroachment’).
The Case
A recent Supreme Court of Queensland case has highlighted that situations involving encroachment are not as straightforward as they may, at first, seem. In Wardanski & Anor v Mawby & Anor [2023] QSC 136 the Plaintiff’s property was encroached upon by part of a garage and block wall belonging to and largely built on the Defendant’s land. The garage and wall were already built when the Defendants purchased the property and they did not become aware of the encroachment until they started undertaking renovations several years later.
Discussions between the parties broke down. The Defendants wanted to realign the boundary between the properties to retain their garage (and not incur the significant expense of modifying it to make it fit within the true boundary). The Plaintiffs simply wanted the full enjoyment of all of their land.
The Decision
The court ultimately found in favour of the Defendant and ordered that the Plaintiff transfer the land burdened by the encroachment (garage and block wall) to the Defendant – a narrow strip of land just over 8m2 in total area. The Defendant was ordered to pay compensation to the Plaintiff for three times the unimproved capital value of the land encroached on, the reduction in value to the Plaintiff’s overall property and costs incurred by the Plaintiff in engaging a surveyor to undertake an identification survey (totalling around $27,000 – with more fees to come as the boundary is realigned and registered).
His Honour reasoned that the prejudice that would be caused to the Defendants in removing the encroachment would outweigh the prejudice to the Plaintiffs if the encroachment remained. The fact that the Defendants were for the most part unaware of the encroachment also factored into the reason for that decision.
Interestingly, Justice Crowley remarked that the compensation in the order of three times the unimproved capital value of the affected 8m2 of land was payable as the encroachment arose as a result of negligence of the previous owners of the Defendant’s land – not the Defendants themselves.
Conclusion
It is critical that, when buying land, one should not solely rely on the placement of buildings and fences as accurate indicators of property boundaries, and that the only true way of knowing if any part of your property is encroached upon, or any of your improvements encroach on another’s land, is to avail yourself of the opportunity to have a licensed surveyor identify the true boundaries of your land. Unlike NSW, that is not yet a common occurrence in Queensland.