Resolving a property encroachment dispute between neighbouring landowners
Encroachments occur when a structure on one lot extends beyond the boundary onto a neighbouring lot. The response depends on the nature and extent of the encroachment, the encroaching party's knowledge, and the available statutory remedies in the relevant state.
This is an 8-step workflow for identifying, assessing, and resolving a property encroachment — whether a fence, building, or structure — using negotiation, statutory encroachment legislation, or court proceedings.
Before you start
- Title searches for both properties
- A recent registered surveyor's report identifying the encroachment
- Photographs and measurements of the encroaching structure
- Any prior correspondence between the neighbours
The workflow
Obtain a registered survey
Commission a registered surveyor to prepare a feature and boundary survey confirming the encroachment location, extent, and measurements. This is the foundational evidence for any negotiation or proceeding.
Conduct title and encumbrance searches
Search both titles for easements, covenants, or prior encroachment agreements that may authorise or affect the encroachment. Check the planning certificate for any relevant zoning controls.
Assess the applicable statutory framework
Identify whether state-specific encroachment legislation applies (e.g. Encroachment of Buildings Act 1922 (NSW), Property Law Act 1958 (Vic) s 334). Determine the available remedies: removal, compensation, transfer of land, or grant of easement.
Send a formal notice to the encroaching party
Write to the encroaching owner identifying the encroachment by reference to the survey, the legal basis for the claim, and a proposed resolution. Set a reasonable response timeframe.
Negotiate a resolution
Explore options: voluntary removal or modification, a boundary adjustment, a licence or easement over the encroached area, or compensation. Many encroachments are resolved commercially without court intervention.
Consider mediation or NCAT/VCAT referral
If negotiation stalls, consider mediation through a community justice centre or refer the matter to the relevant tribunal (e.g. NCAT in NSW, VCAT in Victoria) where the jurisdiction exists.
Commence court proceedings if required
If no resolution is reached, file proceedings seeking orders under the applicable encroachment Act or in equity. Prepare affidavit evidence annexing the survey, title searches, and correspondence.
Implement the resolution
Execute the agreed or ordered outcome: removal of the structure, registration of an easement or boundary adjustment on title, or payment of compensation. Update both titles as required.
What you will have at the end
A resolved encroachment dispute with the outcome — removal, easement, boundary adjustment, or compensation — documented and registered on title where necessary.
Common issues
- Relying on old or informal surveys rather than a current registered survey
- Not checking whether an existing easement or covenant already permits the encroachment
- Delay allowing the encroaching party to argue acquiescence or laches
- Underestimating the cost of removal relative to a negotiated compensation outcome
- Overlooking council approval requirements for any boundary adjustment
Run this workflow on a real matter
Quillio identifies the relevant state encroachment legislation, drafts initial correspondence, and summarises comparable encroachment decisions. See /practice-areas/property-lawyers or start a free trial.
This workflow is a general guide. Encroachment law varies significantly between states and territories — always verify the applicable legislation and limitation periods.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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