What happens if your garage or deck is on your neighbour's property?

It is not uncommon for particular structures on your property, such as a garages, decks or roof eaves to actually be within the boundaries of your neighbour’s property. This is called a ‘boundary encroachment’.  Often people are unaware of the encroachment until such time as the property is put on the market. 

Boundary encroachments are often identified through aerial photographs of the property prepared by the Council.  These aerial photos are not entirely accurate and the only way to determine the exact location of the structures is by locating the survey pegs yourself and/or instructing a surveyor to determine where the boundaries lie and whether there is any overhang by the structure in question. 

A boundary encroachment is not an ideal situation because it means you, as an owner, are legally responsible for the encroachment which could lead to a dispute between you and your neighbour. Correcting the mistake can be a lengthy and costly process. 

If the structure is moveable, it could be moved back within your boundary. However, if it’s an immoveable structure there are the following options: 

Purchasing the area of land with the encroachment 

You could negotiate with your neighbour to purchase the area of land on which the encroachment lies. This will require a surveyor to determine the boundaries of each property and the purchase will include a subdivision of the land. 

Subdividing and purchasing the land means you will become the registered owner of the land on which the encroaching structure lies. 

Registering an easement over the land with the encroachment 

You could also negotiate for your neighbour to grant you an easement over the land on which the encroaching structure lies. This will also require a surveyor to prepare a plan including the easement area, and this plan will be lodged with Land Information New Zealand. There might be Council consents required and the costs for survey plans are usually over $10,000. 

A lawyer will then prepare the easement documents which must be signed by you and your neighbour. The easement will be registered on the title to your property and the neighbour’s.

Registering an easement means your neighbour continues to own the land upon which the encroaching structure lies, but gives you permission to access that portion of it. 

Requesting a Court order 

The above two options require the goodwill and co-operation of your neighbour to agree to the subdivision or easement. 

If this is not possible or successful you can apply to the Court for an order for relief regarding the boundary encroachment. The Court will assess your situation and may grant one of the following orders: 

• Vesting the land upon which the encroaching structure lies to you; 
• Granting you an easement over the land upon which the encroaching structure lies; 
• Giving your neighbour possession over the encroaching structure; 
• Ordering the removal of the encroaching structure; or
• Compensation to either you or your neighbour. 

When purchasing a property it is important to receive legal advice from a legal professional who can point out the existence of a boundary encroachment and guide you through your options to remedy the issue to avoid any complications or disputes with your neighbour. 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.