Boundary fences are a common source of disputes between neighbours. Usually the dispute centres around the type of fence, the cost of the fence and who will pay for it, and whether the fence requires replacement or building at all.

Another issue commonly associated with boundary fences is where a fence or a structure has been incorrectly (sometimes deliberately) placed on adjoining land belonging to another registered proprietor. Certain rights can arise from this occurrence, with the encroacher being able to make a claim for the land, and the owner whose land has been encroached upon potentially losing that portion of their land.

The level of acrimony caused by fencing issues is often disproportionate to the cost of the outcome. For example, in Duarte v Denby [2007] WASC the parties were arguing over a strip of land that was approximately 200mm wide. The case involved a fence built within an adjoining neighbour’s property, on a small piece of land that was valued at $3,000. The Denbys claimed the land passed to them through adverse possession; the Duartes contended that the land belonged to them through their registered title. The matter was initiated in 2004, and after significant legal expenses judgment was finally handed down in 2007.

Common claims arising from an incorrectly placed structure include adverse possession and encroachment.

Adverse Possession

In Western Australia, if a person occupies a parcel of land owned by another for a period of at least 12 years adversely to the interest (ie. against the wishes) of the registered proprietor, that person is entitled to make an application that the land is transferred to them.

The basic elements of adverse possession under the common law are:

  • actual possession: such that the legal owner has a cause of action for trespass. The occupier must act as though they own the property and use the land.
  • continuous and uninterrupted: possession must represent continuous uninterrupted occupation and use of the land. Occasional activity interspersed by periods of inactivity fails the test of continuous and uninterrupted possession.
  • hostile: possession must be adverse to the interests of the legal owner and without permission of the legal owner.
  • exclusive: possess the land to the exclusion of the legal owner and not share possession with the legal owner.
  • open and notorious: use the land in a manner so as to place the legal owner on notice that a trespasser is in possession.

If adverse possession can be established, you may make an application to the Commissioner of Titles for adverse possession. The Commissioner of Titles may then approve the application.

If adverse possession is established, that land can be incorporated onto the adverse possessors’ title, at the loss of the actual owner.

Adverse possession can, however, be prevented easily by taking a few simple steps. Please contact us if you are concerned about an adverse possession claim over your property.

Encroachment

Where any building on land encroaches on a part of adjoining land, an owner may apply to the Supreme Court for the encroaching land to be vested to them.

Pursuant to the Property Law Act 1969, a court may grant special relief in cases of encroachment where it is proved to the satisfaction of the court that the encroachment was not intentional and did not arise from gross negligence. The court may vest an estate in any part of the adjoining land and the payment by the encroaching owner of any compensation.

However, any such application is risky, because the court also has the discretion to order:

  • that you give up possession of the piece of land wrongly built upon, or to pay damages to your neighbour;
  • any other order on terms and conditions that the court thinks fit.

It is important that the application is made correctly. Applications to the Supreme Court are costly, and could be more expensive if a ruling is made against you.

Costs

Other issues affecting boundary fences includes who bears the costs of determining if the boundary is incorrect, and who pays for the replacement fence if it is required.

Survey

If you are concerned about the correct boundaries of your property, you may engage surveyors to survey the correct boundaries.

Depending on the allegations concerning the boundary, the costs of the surveyor may be claimed from the other neighbour if the boundary is incorrect.

New Fence

If a person mistakenly builds on land that belongs to another proprietor, the encroachment (in this case, the fence) vests in the owner of the land on which it has been constructed as a fixture on that land. No compensation is available to the owner of the encroachment.

This means that if the alleged boundary is incorrect, the neighbour is within their rights to demolish the fence with no compensation payable to the encroacher.

Depending on which side of the fence you sit on, your rights to adverse possession and encroachment can be strengthened by being aware of the issues before the other party. Once the affected party is made aware, they can take action to enforce their rights to their property.

Similarly, if you are the owner of the property affected by an encroachment of a fence or structure by a neighbour, being aware of how to enforce your rights and the correct boundaries of your property will prevent years of animosity and legal costs.