When your home is your castle, it’s natural to be territorial if someone tries to claim a slice of land from your kingdom as rightfully theirs. This is your classic boundary fence dispute, and it often creates bad blood between neighbours. So how do you solve a fence dispute? TGB Senior Lawyer Giles Kahl explains.
Most home owners take for granted that the land within their boundary fences is theirs. For some however that assumption is rudely disturbed by a dispute with a neighbour. The situation becomes particularly nasty where it appears that a substantial structure on one property encroaches into a neighbouring property. As a judge of our Supreme Court has commented; “Such disputes are age-old and invariably, in the protagonists, cause intense emotion and the suspension of rational thought. It is not without good reason that the draftsman in Deuteronomy in the Bible was moved to write, ‘Cursed be he that removeth his neighbour’s landmark’.”
We all know that situations arise where a fence has been wrongly positioned, so that it is not on the true legal boundary. But where is the true legal boundary? That is determined by plans held and the Lands Titles Office (in Adelaide), and by surveyors who have the skills to interpret the plans and make precise measurements. You have probably seen survey markers left by surveyors to identify the location of certain points on the ground.
But as precise as surveying is, disputes still arise. Often two surveyors asked to locate the same boundary will disagree by only a centimetre or two, or not at all. If that is so, the location of a building or fence is likely to be irrelevant in determining the location of the boundary.
Sometimes however there can be a substantial disagreement. This usually occurs where the plans held at the Lands Titles Office do not precisely agree with what the surveyors find on site. If the plans show that the distance between two identifiable points is 100m, but a measurement on site shows that the distance is actually 101m, what happens then? What if there are five house frontages along that 100m distance? This is where surveyors have to look at the physical evidence on site (locations of buildings, fences, sewer pipes etc) and work out the “best fit” of the plans to what actually exists.
Two surveyors engaged by neighbours who are in dispute will often disagree between themselves to a greater or lesser degree – there is frequently enough discretion involved in the process to allow surveyors to provide significantly different answers without compromising their professional judgments. The greater the discrepancy between the plans and the physical features, the more the scope for disagreement between surveyors. Larger discrepancies usually (but not always) happen in locations where the boundaries were first surveyed long ago, when surveying techniques were far less accurate (long ago surveyors used to use chains to take measurements, but the chains would stretch and wear over time).
If a dispute between surveyors can’t be resolved, the land owners affected may end up in the Supreme Court, where a judge will make the final decision – usually adopting the opinion of one surveyor over the other or others. Fortunately, it is relatively rare for the parties to have to go to that length to resolve a dispute.
Even assuming that there is no substantial disagreement over the location of the legal boundary, there is still scope for dispute over how an encroachment should be resolved. If there is an encroachment, as that term is defined in the Encroachments Act (SA) 1944 (“the Act”), and one of the parties starts proceedings in the Supreme Court, the Court has the power to make orders to resolve the dispute, including, but not limited to, ordering one owner to transfer some of his or her land to the neighbour, usually in return for a cash payment.
The Act says that “encroachment” means a “building”, and “building means a substantial building of a permanent character and includes a wall”. A typical iron boundary fence by itself is not an encroachment, and the Court has no power to order a land transfer, or “boundary realignment”, on the basis of such a fence alone. The Courts have, however, interpreted the term “building” to mean more than what most people would normally think of as a building. For example a concrete driveway on its own can be a “building”. Generally, to be an encroachment, the structure must be “both substantial and permanent”.
Merely because there is an “encroachment”, that does not mean that the Court will necessarily order a boundary realignment. The Court looks at various factors, including how long the encroachment has existed, who created the encroachment and the circumstances which existed at the time, whether the parties seem to have previously knowingly accepted the encroachment, and the inconvenience, cost or loss which each party will suffer depending on the decision which is made. The Court has a broad discretion, and it is not always obvious, even to lawyers, what the outcome will be if the final decision is left to the Court.
What is clear is that each party will incur substantial legal and surveying costs if the dispute continues to that stage. For that reason the Court strongly encourages the parties to resolve the dispute themselves by negotiation or mediation, either before, or soon after, court proceedings are started.
One factor which seems often forgotten by neighbours in dispute is that usually, after the dispute has been resolved one way or another, they will still be neighbours, and will inevitably be affected by any ill feeling which remains between them. In many situations this provides a further strong incentive not to let the dispute get out of control.
The subdivision of existing house blocks is, however, creating additional problems in this regard, as property owners often now have little choice but than to build right out to the legal boundaries of their new smaller allotments, and face a dilemma if they want to avoid a dispute with a neighbour whose building encroaches over the true boundary by even a few centimetres. Despite the much greater accuracy of modern surveying techniques, boundary and encroachment disputes are probably here to stay.
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