Disputes often arise between neighbours, usually when a problem on or close to the common boundary occurs. The close proximity to the opposing party can make neighborhood disputes especially distressing. It may be possible to avoid expensive and unpleasant litigation by knowing your rights and obligations and attempting to reach an early compromise. Below we summarise the neighbourhood disputes we are often consulted about.
An encroachment occurs when a building or part of it (being a permanent structure that can include a wall) on one lot, is situated over the common boundary and into the neighbouring lot. Structures built close to the boundary like garages and retaining walls, particularly in older subdivisions, are often responsible for encroachments arising.
The party who owns the encroaching structure can be liable for providing their neighbour with an adequate remedy, even if they were not responsible for building the encroachment and it was constructed many years ago by a previous owner.
Encroachments can be rectified by removing the encroachment, transferring the part of the land the encroachment sits on, or imposing an easement over the encroached area. The appropriate solution depends on the extent and nature of the encroachment and how it impacts both landowners.
Either party can apply to the Supreme Court of Queensland for orders about how to resolve the issue if an agreement cannot otherwise be reached. However, the substantial costs and delays associated with court proceedings should provide both parties with a powerful incentive to act reasonably and reach agreement.
If you think your property may be affected by an encroachment, you should engage a land surveyor to prepare an identification survey to confirm the boundaries of your property.
Repair or replacement of retaining walls
Retaining walls can be expensive to repair or replace, meaning a dispute often arises over who is responsible for the cost. The answer is not always straightforward to ascertain, and can depend on a number of different variables, including:
- The location of the retaining wall – whether it is within one party’s lot, or on the common boundary.
- Which lot has a duty to support the other, as section 179 of the Property Law Act provides that a landowner cannot withdraw support from another land or building. This can be a complicated question to answer, requiring recourse to records about the initial subdivision. If your land was cut away and the retaining wall was built to retain the neighbouring lot, then you may have a duty to support. Retaining walls can also be installed to support “built up” earth, if the lot is filled to level it out. In that circumstance, the owner of the “filled” lot may have the duty to support.
- Which lot receives the greater benefit from the retaining wall. This may not always be obvious and can require the advice of an engineer.
- Whether one party is responsible for damaging the wall. Common examples are tree roots or garden beds which can undermine the footings of the wall or attaching heavy or load bearing accessories to the wall which cause it fail. Generally, whoever caused the damage is responsible for rectifying it.
Disputes over retaining walls can be costly to resolve as the Queensland Civil and Administrative Tribunal (QCAT) is usually unable to make orders about them, leaving expensive litigation in the state courts as the only recourse.
Get early advice
If your property is affected by an encroachment or a failing retaining wall, seeking legal advice at an early stage should be a priority. We can provide you with practical advice to understand your rights and obligations and how to approach your neighbour in a constructive way.
If you would like advice regarding your neighbour dispute, you can contact us by telephoning our office on (07) 3220 2929 or emailing us at firstname.lastname@example.org
About Kathleen Anderson
Kathleen Anderson is a Senior Associate in the Dispute Resolution team at Plastiras Lawyers. Kathleen helps individuals and SMEs regarding prevent, negotiate and resolve disputes. Her expertise includes advising on insolvency, bankruptcy and debt disputes.