When you find out that the fence/wall/house your neighbour is building, or has built, is actually on your land – what can you do about it?
No problem of course if you are happy to sell the land in question to your neighbour at an agreed price, or if your neighbour voluntarily removes the encroachment. But if instead you come to blows and end up in court, what will the outcome be? Regrettably, as a recent Supreme Court of Appeal (SCA) case shows, there is no easy answer to that question, hence the practical advice at the end of this article.
A most misleading fence causes confusion
To illustrate, the facts in this matter were these –
- A had bought a number of properties, on one of which was a substantial but incomplete “structure”.
- A thereafter sold 27 of its properties to B, blissfully unaware that the incomplete structure partially encroached on one of the properties it was selling.
- A had been lulled into a false sense of security by an existing fence on the property as to where the property’s boundary was, hence its belief that the incomplete structure was entirely on its own land.
- When, two years later, A discovered the encroachment, it asked the High Court for an order that B be forced to transfer the land in question back to it.
Demolition? Or damages and transfer?
Confirming the High Court’s refusal to force such a transfer, the SCA commented that “adjudication in relation to encroachment is fraught with complexities”, and the hard fact is that, unless and until new legislation is put in place to specifically address these complexities, you are faced with many grey areas.
Broadly, the many court cases relating to encroachment over the years suggest that –
- Your primary remedy is – in theory at least – a demolition order. You may even be able to enlist the assistance of your municipality in this regard.
- However our courts have in many cases, after weighing up what is reasonable and fair in all the circumstances, refused demolition and instead ordered payment of damages as compensation for the encroachment. Regrettably there is no certainty as to exactly how a court will calculate these damages.
- Although in practice a court ordering damages rather than demolition is also likely to order that the land in question now be transferred to the encroacher, that won’t necessarily happen. Indeed the SCA in this case queried whether Constitutional considerations around arbitrary deprivation of property might prevent such an order. One can imagine the practical problems that would ensue if that happens.
- One thing that is now certain, per the SCA’s decision, is that an encroacher cannot just go on the offensive and force you to transfer the land to it. It can defend itself against your application for demolition if you make one, but, like the landowner in this case, you could just sit back passively exercising your ownership rights.
- A relevant factor will always be whether the encroaching structures comply with planning, zoning, building and environmental regulations. The fact that the building in this case was an illegal structure (for want of approved building plans) was another nail in the encroacher’s coffin.
- Another thing to bear in mind – any delay on your part in objecting to the encroachment increases the risk of the court refusing to order demolition.
Demolition, or Damages and Transfer, are the usual old school remedies which spring to mind when in a situation such as this. However, you are dealing with a situation where the parties are in fact neighbours. To a higher or lower degree there is a relationship and shared interest in the fact that they and you own properties next to each other.
Mediation is a 3rd, and arguably the best, option. For the uninformed, mediation is facilitated negotiation, where the parties identify the problem, state their positions and are guided by a trained and accredited mediator to also consider all underlying interests and concerns, unspoken and even unconsidered benefits and disadvantages, and explore options to overcome the dispute or disputes with solutions which are fully acceptable to both parties. It is not a compromise where both parties walk away from the table, equally unhappy, but a well-administered mediation will result in a solution or solutions to which both parties agreed, are happy about and can be implemented in a sustainable manner.
The bottom line – what you should do
You really don’t want to risk a court action with all those complexities and grey areas in the law.
So, prevention being as always much better than cure, before you build anything make 100% sure that you are indeed building on your own land. Remember that old fences and boundary walls may, as happened in this particular case, not always reflect the boundaries correctly.
On the other side of the fence (as it were), take legal advice immediately you learn of any encroachment, planned or actual, onto your property.
And most importantly, with or without having consulted your attorney, discuss or consider the mediation option right at the start. If you and your neighbour cannot resolve the problem over a cup of coffee, or with the assistance of a mutually trusted friend or other third party, agree to refer the matter to mediation and contact a mediator to set the ball rolling.
© (Adapted by Chris Fick & Associates Inc. with authority from DotNews from the article that originally appeared in LawDotNews) No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.