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13 Jul 2022

Director, Murray Thornhill, and Lawyer, Julia McCullagh, in our Dispute Resolution team have outlined encroachments & boundary issues. 

What are my rights if my neighbours are undertaking building work which will affect my land?

In Western Australia, under the Building Act 2011 a person responsible for work must ensure that the work does not adversely affect land beyond the boundaries of the works land or encroach onto the neighbouring land unless:

  • The owner or owners of the land that may be adversely affected consent to the work being done; or
  • The person responsible for the work obtains a court order from the Magistrates Court and the work is done in accordance with that order.

Examples of work which could adversely affect a neighbour’s land include excavating a site or removing a retaining wall (particularly without proper stablisation work) which could cause the land next door to subside.

If it is reasonably likely that land beyond the boundaries of the land on which the proposed building work is to be undertaken will be adversely affected the person responsible for the building work must give notice of this to each owner of the affected land.

Consent from the owners of the affected land must be by way of a prescribed form (Form BA20). It is not enough for a neighbour to simply give consent verbally or in writing.

An application for an order from the Magistrates Court may be made

  • If the consent sought is refused, any time after the refusal is given; or
  • If the consent is neither refused nor given and no request for further information is made within the 28-day period after the notice is given, after that period has expired; or
  • If the person responsible provides further information in response to the request of a person given the notice, 14 days after the further information is given.

In deciding whether to make an order to allow the works to proceed the Magistrates Court will consider 

  • The nature and likely extent of any burden or other detrimental effect to the affected land or inconvenience to an owner or user of the affected land if the order is made; and
  • Whether there are reasonable and practicable alternative courses of action available to the person responsible for the work

If the court makes an order in the absence of a person affected by the order, the person responsible for the work must ensure that the person is given a copy of the order within 7 days.

My neighbour’s garage is encroaching onto my land, what can I do about it?

Where a building crosses the boundary on to a neighbouring piece of land the owner of the land which has been encroached upon may apply to the Supreme Court for relief. The types of orders a Court generally makes in these circumstances includes

  • An order for possession
  • An order to take down the offending building
  • An order for damages to compensate the owner of the land encroached upon

When you purchased your house, you may have obtained title insurance. An encroachment is considered a defect of title and may be covered by the policy. Depending on the terms of your insurance policy it is possible that your insurance company may conduct litigation on your behalf or compensate you for any loss you have suffered as a result of the defect in title.

What are my neighbour’s rights if their building encroaches onto my land?

 The encroaching owner also has certain rights.  In Western Australia, the Property Law Act 1969 entitles a person to apply to the Court for relief where the encroachment was not intentional, or, where the building was not erected by the current encroaching owner

The Court, may without ordering the encroaching owner or any other person to give up possession of the piece of land encroached upon, if it thinks fit make an order —

  • Vesting in the encroaching owner or any other person any estate or interest in any part of the adjoining land; or
  • Creating in favour of the encroaching owner or any other person any easement over any part of the adjoining land; or
  • Giving the encroaching owner or any other person the right to retain possession of any part of the adjoining land.

Such an order may be made subject to terms and conditions, as the Court thinks fit, including payment by the encroaching owner (or any other person) any sum to the person whose land is affected.  Before making such an order the Court must also be satisfied that the encroachment was unintentional and did not arise from gross negligence.

Adverse Possession

Depending on how long the encroachment has been on your land your neighbour may have a claim based in adverse possession. Find out more about Adverse Possession here

Managing risk to your property

Prior to commencing building works close to the boundary, it can be invaluable to obtain a boundary survey to confirm that any new building or structure is constructed on your side of the cadastral boundary to avoid these kinds of problems.

It is also normal practice for a person about to do building or demolition work to carry out a dilapidation survey of adjoining buildings and land to help determine whether any future damage is caused by that building or demolition work.

How can HHG Legal Group help?

We understand that this area can be a tricky area to navigate and that often the issues and circumstances are not clear-cut. Our team of property law experts are always available to help you with any questions that you may have. Make an appointment with HHG Legal Group today.

If you would like HHG to assist with this process, please contact one of please contact our Dispute Resolution lawyers on (08) 9322 1966 or email reception@hhg.com.au  

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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