Chapter 5: Boundaries

Boundary disputes

If your land is Torrens title, the exact boundaries of your property will be shown on the deposited plan (DP) held by NSW Land Registry Services. If your land is Old system, the title deed will give the detailed specifications and measurements.

If you have a dispute about the location of the boundary and the information contained in the DP or title deed does not resolve the boundary dispute, you may wish to have a survey carried out by a registered surveyor. See if your neighbour will share the costs, and provide them with a copy of the survey when it is done.

You can also apply to the Registrar-General under Part 14A of the Real Property Act 1900, for a boundary determination. You will need to lodge an application form and any relevant supporting documents and information, to NSW Land Registry Services and pay an application fee. Where necessary you will be required to pay the cost of any survey carried out.

Notice of the application is given to adjoining landowners and any other appropriate people and submissions are invited from them, usually within 21 days. The Registrar-General will then make a determination based on all the evidence (Real Property Act 1900, sections 135E and 135H).

Notice of the determination is given to the applicant and adjoining landowners, the Surveyor-General and, where necessary, amendments will be made to the registered plans and other documents lodged with the Registrar-General at NSW Land Registry Services . Any appeal of the determination must be made to the Land and Environment Court within 28 days (Real Property Act 1900, section 135J).

Encroaching buildings

In NSW, the Encroachment of Buildings Act 1922 regulates situations where a building is built across a boundary. It applies to a ‘substantial building of permanent character’ and includes walls, overhangs and any part of a building above or below ground that crosses a boundary.

If there is an issue as to the exact boundary and hence, whether the building will or does encroach, either of the owners can apply to the Registrar-General for a boundary determination, under the Real Property Act 1900, Part 14A, or if this is not applicable, to the Land and Environment Court for an order to determine, mark and record the true boundary (section 9).

Where there is an encroachment, either owner can apply to the Land and Environment Court, under the Encroachment of Buildings Act 1922 for an order to:

compensate the encroached owner
grant an interest like a transfer, easement or lease to the encroaching owner, or
remove the encroachment (section 3(1) and (2)).

In making the order, the court will consider various matters like:

who made the application
the circumstances of the encroachment
the situation and value of the land
the character and use of the encroaching building
any loss and damage that may be incurred by either owner (section 3(3)).

The court may refer any questions to a registered surveyor or a valuer and the order may require a particular party to pay the costs and expenses of the proceedings (sections 3(4) and 14).

If the encroachment is a result of a failure to follow an approved building plan, for example an extension built in excess of the approved specifications, contact the local council. The council can order that the encroachment be removed or altered to comply with the approved plan. Under the Environmental Planning and Assessment Act 1979, section 123, any person can apply to the Land and Environment Court for an order to remedy a breach of the Act, including failure to follow approved plans.

Adverse possession

Under the principle of adverse possession, if a person has occupied part or all of a parcel of land that does not belong to them for a long period of time, that person may be able to claim ownership of the land.

The period of occupation required is generally more than 12 years (Limitation Act 1969, section 27). With Torrens title land, the adverse possession may also have to apply to the whole parcel of land and not part of it (Real Property Act 1900, section 45D). As most land ownership in NSW is Torrens title, this means that in most cases, for example, where a dividing fence is wrongly placed for a number of years, the owner with the benefit of this extra strip of land cannot claim ownership of it under this principle. Adverse possession is not available for Crown land (Crown Lands Act 1989, section 170).

If the land is Torrens title a ‘possessory application’ can be made to NSW Land Registry Services accompanied by a plan of survey plus various declarations and information and an application fee (Real Property Act 1900, sections 45B-45G). If the land is Old system a ‘primary application’ can be made accompanied by a plan of survey and application fee (Real Property Act 1900, section 14).

The law of adverse possession is complex and technical and may involve Supreme Court proceedings. If you have a dispute regarding adverse possession, get expert legal advice.