Boundary problems are a common (and frustrating) source of property dispute in New Zealand. Whether it’s a fence in the wrong place, a neighbour’s garage crossing the boundary, or a new extension creeping onto your land, even a small encroachment can have significant repercussions both in the cost to remedy, and the possible implications it can have for the use of your land.
This guide explains in simple terms what possible options are available to a property owner, when a structure or building is crossing the (boundary) line.
A boundary is a line (or surface) which separates one section of land from another. In New Zealand the size and shape of sections of land are defined by a Land Information New Zealand (LINZ) survey plan, which records the legal boundary lines.
Usually, a fence, hedge or other structure is used to physically separate one property from another and provide privacy from neighbours or passersby. While it is commonplace for people to assume when they buy a property that everything inside the fence is “theirs” and everything on the other side of the fence is “the neighbour’s”, fences are only an indicator of the boundary: they are often built approximately on the line, but many are not exact.
If you’re unsure of the boundary line for your property, a licensed cadastral surveyor can determine the true legal boundary. These boundaries don’t move unless:
• A subdivision or boundary adjustment is completed
• A survey correction is officially registered
• Adverse possession is successfully claimed (although this is quite rare in New Zealand).
An encroachment occurs when something that belongs to a neighbour crosses the boundary line and sits within your land (or vice versa). This can include various types of structure and includes things like:
• A fence, deck, shed, or retaining wall
• A driveway or concrete path
• A house extension or garage
• Drainage pipes, poles, or overhanging structures
Encroachments can vary from things that are quite small: for example, a small garden tap that extends a few centimetres into a neighbouring yard, to major boundary intrusions of several meters. Both can be legally significant, as both have the capacity to impact a person’s use and enjoyment of their land.
Modern boundary disputes can arise from a vast array of circumstances, including:
• Fences built in the wrong place decades ago
• Unrecorded DIY work
• Confusion about historic survey pegs
• Inaccurate assumptions by previous owners
• Subdivision or land movement (in rare cases)
• Relied-on “old” measurements rather than current survey data
These encroachments are often identified when:
• an existing fence is being replaced, and a surveyor is brought in to determine the correct placement for the new fence; or
• a property is being subdivided; or
• building works are being undertaken close to a boundary; or
• a property is being sold, and a purchaser identifies a potential encroachment by looking at aerial photographs.
Because boundaries determine ownership, even small mistakes can create tension: especially when property values are high, or if a reduction in the size of the land could limit development opportunities for one party.
New Zealand law recognises that while boundaries are fixed, solutions to encroachments need to be practical, and tailored to the specific circumstances.
Ideally, if an encroachment issue is identified, neighbours (and their lawyers) will reach an agreement as to how to rectify the issue amicably.
Sometimes however, agreement cannot be reached. When that occurs, the Property Law Act 2007 gives the Court flexible powers if one neighbour’s structure encroaches on another’s land. The Court may order:
• Compensation
• Removal of the structure
• A boundary adjustment
• A granting of a legal right to occupy (an easement or encroachment licence)
The aim is to reach a fair outcome, considering the cost of removal, the impact on each property, and whether the encroachment was intentional.
Engage a registered surveyor if there is any uncertainty. A survey provides definitive evidence and can help to prevent avoidable and unnecessary conflict.
As soon as an encroachment is identified, you should seek legal advice, particularly if:
• The encroachment is substantial
• The neighbour is uncooperative or hostile
• A structure affects your resale value or planned use of the land
• You need help negotiating an easement or compensation
• You’re facing pressure to permit an encroachment you’re not comfortable with
A lawyer can help you understand your options, protect your rights, and avoid unnecessary stress.
Most boundary issues arise from genuine mistakes, and in many cases, the mistake pre-dates either parties’ ownership.
A respectful conversation can often resolve issues without escalation, particularly if the encroachment is minor and/ or the encroaching structure is moveable (in which case, the structure could be moved or removed, to easily remedy the encroachment).
If the relationship between you and your neighbours is strained or the problem is significant, seek legal advice before approaching them.
If available, you should keep records of:
• Photos of the land and structures in question (ideally dated), both current and historic, in order to ascertain when the encroaching structure was placed there.
• Survey plans.
• Correspondence between yourself and your neighbour regarding the encroachment.
• Notes of discussions between yourself and your neighbour.
Having this information will be important if more formal legal action is required.
As previously indicated, reaching a pragmatic and mutually beneficial solution with your neighbour is the usually the best outcome. Your lawyer can assist you in negotiating an agreement with your neighbour, to help avoid the time, cost and stress of litigation. Possible options include:
• The neighbour removes or relocates the structure
• You agree to let it remain in exchange for compensation
• A formal easement or encroachment licence is created
• A boundary adjustment is registered (the neighbour purchases the part of your land their structure is on, and it is formally joined with their land)
Each option has both positive and negative aspects, and the suitability of any option is completely circumstance dependent: this is where your lawyer’s experience really comes into play. Any agreement should be recorded in writing and registered on the title (where appropriate) to avoid future disputes and provide certainty to future owners if either property is sold.
Prevention is better than cure, so how can boundary encroachments be avoided?
• Get a survey before erecting a fence. If you are replacing an existing fence, do not assume that the current one is in the right place: engage a surveyor so you know for sure. A small upfront cost can prevent a costly dispute later.
• Check your local Council’s rules about where structures like decks, sheds, small self-contained dwellings or extensions are allowed to be in relation to a boundary before you build, ensuring you obtain any necessary resource and/ or building consents.
Boundary and encroachment disputes can be complicated, emotional, and expensive if handled poorly. If a boundary issue is affecting your property (and peace of mind) our experienced team of property lawyers at McMillan&Co. are happy to help you to resolve matters and protect your investment, while maintaining good neighbour relationships.
Emily Robertson, Senior Solicitor
emily@mcmillanco.nz
“McMillan&Co. incorporates the practices of David Polson, Roger Barrowclough, Gerald Wilson, Joss Miller and McKinnon Aitken Martin.”
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