Boundary encroachments

When you purchase a property it is usual to assume that the fence is located on the boundary of the property and the garage has been built entirely within the boundaries of  the property.  However, this may not be the case.

An encroachment can occur when a building is built over the boundary or a fence is not built on the boundary.  The person who currently owns the land is legally responsible for the encroachment, whether or not they erected the building or fence.

Often a boundary encroachment may not become evident until, for example, there is a subdivision of the land or the adjoining land, or it is necessary to locate the survey pegs to erect a building which requires a building consent.

If there is a dispute about where the boundary of a property is, the first step is to find the survey pegs.  If survey pegs are missing, then a surveyor can establish where the boundary is and if necessary replace any survey pegs which have been lost or removed.

What can you do if a building is located over the boundary

You may be able to negotiate with the neighbour to purchase or sell the area of land on which the building is located.  This would require a subdivision consent for the boundary adjustment.

Alternatively you could make an application to the court.  Under the Property Law Act 2007 the court can make orders which it thinks are just and fair in the circumstances including:-

• Make an order that the affected land be vested in the owner of the wrongly placed structure.
• Grant an easement over the land on which the wrongly placed structure is located.
• Give the owner of the affected land the right to possession of the wrongly placed structure.
• Make an order that the wrongly placed structure be removed.
• Require reasonable compensation to be paid as determined by the court.

Fencing

If there is a fence which is not located on or close to the boundary line, then the Fencing Act 1978 applies.  The Fencing Act 1978 requires that any fence is built as close as possible to the boundary line.

If it is found that a fence has  been erected on the boundary line without the consent of the occupier of the land, an application can be made to the court for an order that the fence be removed.  The court will order the removal of the fence (at the expense of the person who erected it) unless it is satisfied that:-

1. The degree of encroachment is minimal; and
2. The encroachment in no way adversely affects the use and enjoyment of the land by the applicant.

Purchasing a property

If possible, it is important to check the boundaries of any property that you are looking to purchase.  It is not safe to assume that the improvements on the land or the fence are within the legal boundaries.

Sometimes the council will have an aerial map which shows the approximate location of the boundaries which is a good starting point to see if any improvements on the land may encroach on a neighbour’s property.  However, the only way to  know for sure where the boundaries are is to find the survey pegs, and if there are survey pegs missing, to arrange for a surveyor to find the boundaries and replace the missing survey pegs.

Some older titles have a notation “limited as to parcels” which means that the legal boundaries are uncertain. There is a greater risk with this type of title of a boundary encroachment especially if any improvements on the property are located close to the boundary.

Boundary encroachments and fencing issues can be difficult especially when you want to stay on good terms with neighbours.  If you think you have a boundary issue, we have an experienced property law team that can assist you with any issues you may have.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.