Some may think that property conveyancing is a standard procedure in which there are rarely any dramas. Our experience tells us to expect the most unusual issue to arise out of the blue. The “encroachment” of a structure onto a neighbouring property is one of the biggest dramas that a buyer or seller can experience.
Imagine if you’ve just settled your purchase of a house and land package, only to discover that a large chunk of your house has been built on the neighbour’s property. This is the scenario in a current court case in Mackay.
This may seem an obscure scenario, but “encroachment” is never a minor issue for those who are affected!
Unfortunately for the unhappy buyer, the law is on the neighbours’ side. Usually these situations are resolved with the encroacher (the buyer) paying for the land, and for the Council and survey fees for a boundary realignment.
Next the buyer would be looking to the builder to fix them up for those losses. Assuming that the builder is responsible for the mistake, the building contract would be a basis for a claim against the builder. There may also be a claim for negligence.
How to avoid the problem?
- Do a survey! The buyer’s contract would probably have allowed them to conduct a survey before settlement. Had they done this, the survey would have exposed the encroachment and they could have terminated the contract.
- Get legal advice on the contract before you sign! This is as important for house and land contracts as it is for any contract.
- Make sure that there are separate land and building contracts, instead of just tacking a few building specifications onto the land contract.
We have seen a few encroachment issues over the years, acting for the unfortunate encroachers or for the usually indignant encroachee! Situations have included:
- Fences and retaining walls which are over the boundary;
- Verandahs and eaves which jut over a boundary or into the neighbour’s airspace;
- A swimming pool on a body corporate’s common property, which was partly on the common property of a neighbouring block of units.
Prevention is better (and much cheaper) than the cure, so carrying out full property investigations is all-important. Please don’t hesitate to contact me if you have any questions relating to encroachment or other property law issues.
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