Encroachments Discovered After Purchase

An encroachment happens when a building, fence, retaining wall or other structure crosses over a property boundary onto neighbouring land. It is a different problem from a simple boundary dispute, because the structure itself, rather than just the location of the line, is the issue. Discovering an encroachment after you have already settled on a property is unwelcome, but it is a known and manageable risk with established legal remedies in every state.

What an Encroachment Actually Is

Encroachments range from minor and harmless, such as a garden bed or a section of paving that strays slightly over the line, to significant, such as a garage, carport or extension built partly on a neighbour's land. Overhanging eaves, guttering and even underground footings can also count as encroachments, since a structure does not need to be visible above ground to cross a legal boundary.

Why These Are Not Always Caught Before Settlement

A standard title search confirms who owns a property and what is registered against it, but it does not physically measure where buildings actually sit relative to the boundary. Unless a buyer commissions an identification survey, an encroachment that has existed for years, sometimes built by a previous owner long before the current seller purchased, can go unnoticed until a new survey, a fence replacement, or a neighbour's renovation brings it to light. Many buyers simply do not think to ask for a survey unless something during the inspection prompts the question, which is part of why encroachments are so often discovered well after settlement rather than before it.

When the Encroachment Is on Your New Property

If you discover that a neighbour's structure encroaches onto the land you have just bought, your options include negotiating directly with the neighbour for its removal, agreeing to a formal arrangement that allows it to remain, or seeking a court order if agreement cannot be reached. Every state has its own encroachment legislation setting out how these disputes are resolved, and the courts generally have discretion to order removal, compensation, or a transfer of the affected land, depending on how the encroachment came about and how long it has existed.

When Your Property Encroaches on a Neighbour

The reverse situation, where a structure on the property you bought crosses onto a neighbour's land, carries its own risk, since the neighbour may be entitled to seek removal or compensation from you as the new owner even though you did not build the structure yourself. This is one reason a pre-purchase survey is worth considering for older properties with additions, garages or sheds close to the boundary, particularly where the contract does not include a recent survey or identification plan. It is also worth checking whether a previous owner ever reached an informal arrangement with the neighbour, since that history can shape how the current neighbour expects the issue to be handled.

Legal Remedies Available

Encroachment law is state-based, and each state's approach differs slightly in the detail. South Australia's framework, for example, is explained in the Law Handbook's guide to encroaching buildings, which outlines the kinds of orders a court can make, including compensation, transfer of the affected land, or removal of the structure. Similar principles apply in other states under their own encroachment legislation, though the exact process and court involved will differ.

Time Limits and How Long an Encroachment Has Existed

How long an encroachment has existed can genuinely affect the outcome, since courts weigh factors such as whether it was built knowingly or by honest mistake, whether the affected owner delayed unreasonably before objecting, and how much it would cost to remove compared with the inconvenience of letting it remain. A long-standing encroachment that has never been challenged is not automatically safe from a future claim, but the practical likelihood of a court ordering removal, rather than compensation, tends to fall the longer a structure has stood without objection. This is a further reason to get advice on your specific facts rather than assuming a general rule of thumb applies.

Practical Options Once You Own the Property

In practice, most encroachment issues are resolved without going to court. A written agreement between neighbours recording the encroachment and any conditions attached to it, sometimes registered on title, can resolve the immediate problem and prevent it from causing complications at your next residential sale. Getting independent legal advice before agreeing to anything is worthwhile, since an informal handshake arrangement will not protect either party if the property changes hands again. Where the encroachment is minor, some neighbours simply agree in writing to let it remain indefinitely, which at least creates a clear record for future buyers and their conveyancers to rely on.

How a Conveyancer Reduces This Risk Before You Buy

Before you exchange on a residential purchase, your conveyancer can flag properties where an encroachment is more likely, such as older homes with additions close to the boundary, and recommend a survey where the risk looks material. Reviewing the contract for any existing encroachment disclosures, and checking title for registered easements or agreements, is a standard part of due diligence that reduces the chance of an unpleasant discovery after you have already settled in Queensland, Western Australia or any other state. None of this removes risk entirely, since a survey adds time and cost to a purchase, but knowing the trade-off lets you make an informed decision rather than an uninformed one.