Each State of Australia has adopted the Torrens Title system of land ownership, meaning that your Certificate of Title is absolute proof of ownership of your land.
The Title Register adopts the surveyed boundaries of your land and confirms your ownership from the property boundary, down to the centre of the Earth (subject to mineral rights) and the air space above.
It is not uncommon to find land ownership is affected by an encroachment from a neighbour e.g. building overhang, or a fence put in the wrong position thereby taking up some of your valuable land. An encroachment must be distinguished from a trespass or nuisance e.g. overhanging branches or tree roots; and distinguished from improvements by mistake e.g. house built on the wrong land (believe me, it happens!). Those problems are for another article.
The Property Law Act 1974 assists in such situations where agreement between neighbours is lacking. An application can be made to the Supreme Court for relief in the nature of monetary compensation, orders for transfer of the part of the Title affected or removal of the encroachment. The Court won't be concerned about trivial encroachments but recognises the ownership rights mentioned above.
But legal proceedings are always traumatic and expensive. The best, and really only, way to avoid such problems is to ensure that before you buy your land or erect your fence or retaining wall you obtain a check survey to confirm exactly where the boundaries are. Don't rely on an existing fence or even pegs in the ground, - they are often wrong. The small cost of a check survey can save a lot of angst and cost to everyone, and can give you peace of mind in the meantime.
Ian Neil
Litigation Partner
McCarthy Durie Ryan Neil Solicitors
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