Many landowners are faced with the issue of what to do about an encroachment. An encroachment commonly occurs where part of a building or structure from one parcel of land overhangs or intrudes onto an adjoining parcel of land.
Under the Property Law Act 1974 (Qld) (“the Act”) the term “encroachment” is defined to mean “encroachment by a building, including encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil.”
In practical terms, this can mean anything from an air-conditioning unit overhanging into a neighbouring property’s air space, to the foundations of a building intruding into the subsoil of neighbouring land.
The Act sets out what can be done about an encroachment in Queensland. Under the Act the Court has legal discretionary powers to deal with an encroachment, including by making orders for the:
- removal of the encroachment;
- the transfer of the encroached land;
- grant of an easement over the encroached land;
- payment of compensation;
- payment of costs of effecting any boundary re-alignment;
- payment of costs of the law court proceeding.
If it is unduly burdensome or impractical to remove an encroachment, the court has a legal discretion to order that the encroached land be transferred to the encroaching neighbour on just terms, including the payment of compensation and costs associated with the transfer and consequent boundary re-alignment.
The Act provides guidelines for the assessment of compensation. The minimum compensation payable will generally be the unimproved capital value of the encroached land, but this will be increased three-fold where the encroachment was intentional or arose from negligence. There are other factors which may justify ordering compensation in an amount above the applicable minimum.
Dealing with an encroachment can be a complex issue, particularly where a boundary re-alignment is to be either agreed between the parties or ordered by the law Court. Many cases not only involve legal issues, but also require consultation with, and evidence from, other experts such as surveyors, engineers and town planners.
Please contact Preston Law in Cairns on 4052 0700, for more information about encroachment.