I think my neighbour’s wall is in my property

“Is my neighbour’s wall sitting on my land?” is a common question among landed property owners. When owners do complain to BCA and SLA on land issues involving boundaries, they will be advised to engage a registered surveyor instead. Boundaries are not defined by perimeter walls or fences. The foremost task is to determine where the boundary is and the registered surveyors are the professionals licensed for such specialised services.

The issues fall under three categories:

• Your neighbour’s feature (eg. perimeter wall) encroaches onto your land
• Conversely, your feature encroaches onto your neighbour’s land
• Your feature encroaches onto State Land (eg. Road Reserve)

Each of these requires different resolutions.

Types of Encroachments

Common encroaching features are perimeter walls and fences, gate posts and columns. Less common ones include roof eaves, trellises, pipes, etc. Less outright ones are trees.

Encroachment issues usually surfaces:

• When a property is surveyed for subdivision or amalgamation
• When a property is to be redeveloped
• When a perimeter feature such as wall or fence is to be replaced
• Consequent to a boundary survey conducted for road widening
• When neighbours are on bad terms

Role of Registered Surveyors

The tasks for the Registered Surveyor are:

• To determine the position of the boundary in compliance with existing legislation, statutes and directives in place
• To make precise measurements of all features along (& near) the boundaries
• To prepare a report (including an Encroachment Survey Plan) listing all issues found
• To advise on the resolutions
• To re-demarcate the boundaries for rectification, if required.

If required, he is the expert witness for boundary issues (eg. encroachment) in the legal proceedings.

Possible Resolutions

Possible resolutions for encroachment by a neighbour’s feature are:

• Removal of the encroaching feature
• Retention of encroaching feature subject to neighbour undertaking to remove when requested to do so and with your consent
• Rectification by party undertaking reconstruction or renovation

Possible resolutions for encroachment by your feature are:

• Removal of the encroaching feature
• Retention of encroaching feature subject to you undertaking to remove when requested to do so and with your neighbour’s consent
• Rectification by party undertaking reconstruction or renovation

Possible resolutions for encroachment onto State Land are:

• No issue if encroachment is 3cm or less otherwise to remove the encroaching feature (This does not mean a person can intentionally build his feature up to 3cm into State Land)
• If encroachment is >3cm and up to 10cm, to apply to Commissioner of Land for retention subject to an undertaking to remove the encroachment when requested to do so
• If encroachment is >10cm, to apply for Temporary Occupation Lease (TOL)

Associated Considerations

Making a report on encroachment is not a straightforward process of measure survey. There are often associated nuances to be clarified.

A common problem is to establish the ownership of a wall that was built decades ago by previous generations of owners where both current neighbours deny their ownership. The Registered Surveyor will need to search and investigate old documents and records to substantiate the ownership.

There are also situations where a wall is shared between two neighbours – especially where such original walls were built by developers. In such as situations, there would be no encroachment issues if the boundary is within the middle 1/3 median (portion) of the shared wall. Otherwise any rectification shall be by the parties involved.

There are situations where a wall tilts over time across a boundary. The portion across the boundary is an encroachment. The 3cm tolerance for no-issue applies.

Conclusion

The boundary is not defined by the perimeter wall and it has to be established by a Registered Surveyor. Should you suspect issues along your boundaries, do not hesitate to contact us about it.