Encroachment and Adverse Possession

It is timely to look at the principles of encroachment and adverse possession. These concepts and their relationship to each other are often confused and misunderstood.

What is Encroachment?

Encroachment usually refers to a form of development, for eg. a building, fence or retaining wall, that either wholly or more often partially encroaches on to neighbouring land.

It is an offence under section 76 of the Building Act 2011 (WA) (Building Act) to allow building work to encroach over neighbouring land including Crown Land.

There are a number of exceptions or defences to the offence. For eg.

  • You have the consent of the Owner; or
  • It is placed pursuant to a Court order under section 86 (2); or
  • The encroachment is prescribed as minor; or
  • It is over Crown Land and authorised under the Land Administration Act 1997 (WA)

Minor encroachment exceptions to the offence under section 76 are prescribed under Regulation 45A of the Building Regulations 2012 (WA) as follows:

  • an architectural feature attached to a building if the feature encroaches on a road or a public place by not more than 250mm;
  • a window or shutter that when open, encroaches on a road or a public place; at least 2.75m high;
  • a window shutter that, when fully open, encroaches on a road or a public place by not more than 50mm.
What happens if I encroach onto other land?

If Planning Approval for the structure was required and not obtained the Local Government with jurisdiction over the land may:

  • give a written direction to the owner of the encroaching structure to remove it or pull it down under section 214(3) of the Planning and Development Act 2005 (WA) or
  • prosecute the Owner under section 218 of this Act.

If the encroaching structure was constructed on or after 2 April 2012 and would have required a Building Permit but does not have one, then a Local Government could:

  • make and serve a building order on the owner requiring them to remove the encroaching structure pursuant to section 110 of the Building Act provided that a notice to do so is first issued under section 111 of the Building Act; or
  • prosecute the owner under section 133 of the Building Act.

If the encroaching structure was constructed prior to 2 April 2012 and would have required a Building Licence but did not have one, then a Local Government could rely on section 37 of the Interpretation Act 1984 (WA) and:

  • issue a pull down notice under section 401 of the Local Government Miscellaneous Provisions Act 1960 (WA)(LGMP Act); or
  • prosecute the Owner under section 374 of the LGMP Act.

Notwithstanding the encroaching structure is one that does not require either Planning Approval or a Building Permit, then provided that a breach of section 76 can be made out, a Local Government could still proceed with a building order under section 110 or prosecute under section 133 of the Building Act.

What is Adverse Possession?

Adverse Possession (or rights to possessory title) are Common Law rights that if established can extinguish the registered owner’s title. A successful applicant can have their common law possessory rights recognised whereby they can become entitled to be registered as the Owner.

How do you establish Adverse Possession?

Time is very important. Generally speaking the period of adverse possession needs to be over twelve (12) continuous years. Where the land owner is under a legal disability it is thirty (30) years.

The possession must be by a single and exclusive possessor for the whole of the period. This means that you can’t have several persons each coming on and using the land independently of each other at the same time. Although you can have a chain of single and exclusive possessors.

The claimant must demonstrate control of the land and the intention to control the land to the exclusion of all others. The nature of any improvements made to the land can have an impact on the control and intention element and fences generally, but not always, tend to suggest an intention to possess.

How do you make an Adverse Possession claim?

You can make an application to the Registrar of Titles. The process for doing this and the documentation and evidence required is comprehensively set out in Landgate’s Land Title Registration Practice Manual.

Alternatively you can make an application directly to the Supreme Court of Western Australia.

Landgate is often favoured by claimants as it is perceived to be easier, administrative and less costly. However the Landgate process can take considerable time and extensive requests for documentation are often made. Further, if the matter is not consented to by the registered owner then the Registrar can refer the application to the Supreme Court in any event.

Are there exceptions or exclusions?

Due to section 36 of the Limitation Act 1935 (WA) and section 76 of the Limitation Act 2005 (WA) it is not possible to adversely possess Crown Land.

This exclusion does not, however, include land owned by Local Governments. There is nothing excluding the operation of adverse possession principles against Local Governments in Western Australia although there has been legislative intervention in other states.

Adverse Possession as an Encroachment Defence?

If an encroaching owner can establish adverse possession then there will be no encroachment and no offence under section 76 of the Building Act.

Notwithstanding an encroaching owner establishes adverse possession, the development may still be in breach of building and planning law to the extent that the development may not be located on the land according to planning and or building approvals.

In addition to adverse possession, section 122 of the Property law Act 1969 (WA) provides a statutory mechanism for seeking relief from the Court.

If you can prove that encroachment was not intentional, did not arise from gross negligence or where the building was not erected by the encroaching owner, if the Court thinks it is just and equitable it may:

  • Vest the land in the encroaching owner or other person;
  • Create an easement; or
  • Grant the right to retain possession.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.