Farm advice: Issues with boundaries abound
John Sheddan shares advice on how to solve disputes arising from infringement of land
Once you’ve purchased a property, you presume you own all the land that falls within its boundaries. What happens, however, when the boundaries you think you’ve bought are not your actual boundaries?
Locating the boundaries
On a new subdivision, the boundaries are defined by survey pegs that are placed when marking out the land.
On older properties, the boundaries are frequently assumed to be where the fences and gateways are. It’s also possible, depending on the nature of land, that a boundary may be defined by a river or creek.
Although historically the boundaries may have been well-defined, these boundaries may have moved over time through accidents, gentleman’s-type agreements, movement of the creek or river or, occasionally, by subterfuge. The only way to know for certain is to have the boundaries re-marked by a land survey.
With the advent of modern technology, it’s now possible to easily get an overlay of an aerial photograph or satellite map matched with a land survey plan. While approximate, this gives a fairly good indication of where the actual boundaries lie with the property. For the most part, doing this provides the degree of comfort necessary when purchasing a property.
Boundary deviations
Every so often, however, the overlay shows up massive deviations, which have occurred through time. Not all are deliberate. I’m aware of towns where the survey map and the sections within the town are significantly mismatched with roads appearing to run through properties and houses are constructed across boundaries. Notwithstanding this, these towns have continued in existence for more than 100 years, and it’s a known quirk with those respective locations.
The issues now arising in a rapidly computerised and exacting world are that council bylaws require a distance to be ‘set off’ between a boundary and the construction of a new building or building extension. In some cases, this requires that the boundaries be marked, or pegged, to show that the correct distance is being adhered to. Occasionally, these surveys reveal that the believed boundary is not correct and that there’s some degree of encroachment either by the owner over the neighbour’s property or the neighbour over their own. Often these encroachments go back decades.
What to do?
A purchase situation
If you discover the encroachments at the purchase stage, it gives you the opportunity to consider whether this is an issue. You could walk away from the deal or seek that the current owner, who’s probably unaware of the situation, helps to remedy the problem.
You already own the property
If you already own the land, you can decide whether you want to simply live with the situation or if it’s a matter that you need to resolve with your neighbour.
Sometimes the local council may be your neighbour and you could have built or encroached onto its land with either your building or your garden.
Other times, it’s a private neighbouring landowner. Sometimes in the cases of farmland, it may be that you find you’re farming some of your neighbour’s property due to (say) the movement of a river, they may be farming some of your land, or you could each be farming bits of each other’s property.
Remedies
The Property Law Act 2007 provides a number of remedies for infringement of land. This is an order for the removal of a constructed building, the forfeiture of the building, an order for the sale or purchase of the encroaching land area, or an easement or occupational right agreement for the use of the land.
The District Court has jurisdiction over these matters. The involvement of lawyers, the court, surveyors, and local councils for the resolution of these situations will, unfortunately, result in incurring a substantial expense.
While each case is unique, historic encroachments are unlikely to result in forfeiture or removal of buildings, especially if the current owners are innocent of the situation. Remedies would, however, be required. The court is likely to require a boundary adjustment or some form of formal right to be created. Correcting the matter would require resource consent for the adjustment of the boundary, a valuation and sale of land between neighbours, a resurvey of the new corrected boundary, and the subdivision of land incorporating the boundary adjustment. It’s likely that such a process would leave little, if any, change out of $10,000-$12,000 or more.
Possibly a more practical solution?
Practically, the cost of remedying such a matter needs to be considered in light of the property’s encroachment. Ideally, common sense and communication would allow a resolution to be reached without the need for undue expense. It may be possible that an agreement to a simple easement or to occupancy is reached between the parties without the need to resort to full legal remedies.
Unfortunately, however, modern demands of certainties, building rules, and compliance requirements necessitate that handshake-style agreements be replaced due to the uncertainties and issues that may arise in the future.
My experiences with boundaries
Boundary issues that I’ve been involved in over recent years include a situation where a neighbour’s driveway encroached over the boundary due to a tight space between two 1930s houses; a historic hall constructed over the boundary with the neighbour’s land from 70 years ago; farmland that consists of a legal riverbed even though the river was straightened and relocated decades ago to a neighbouring property; situations where a boundary fence had been realigned to allow ease of access as vehicles became bigger due to a narrow driveway; and gentlemen’s-type agreements for relocated boundary fences due to springs, gullies and natural terrain.
Conclusion
Many of these practical solutions at the time can create issues and challenges years later; there can be uncertainty for the current owners and disputes between neighbours. The key answer is to do your homework when purchasing land to ensure that you’re not left with any surprises over your ownership in years to come.
John Sheddan is a director of Gore law firm, Sheddan Pritchard Law Ltd. He specialises in rural and commercial issues involving rural and residential property sales, business sales, leases, and subdivisions.
Sheddan Pritchard Law Ltd is a member of NZ LAW Limited, an association of 54 independent law firms practising in more than 80 locations.
Information given in this column should not be a substitute for legal advice.
Find new and used farm machinery for sale in NZ
Keep up to date in the industry by signing up to Farm Trader's free newsletter or liking us on Facebook
.jpg)
.jpeg)
.jpg)
.jpeg)
.jpg)
.jpeg)
.jpg)
.jpg)
.jpg)
