It is not uncommon that when a property is developed, particularly a rural property, either intentional or inadvertent encroachment can take place. One common cause of such encroachment, which is frequently not anticipated by either party, is that the relevant title plans often have a large degree of tolerance or margin of error. In addition to this, the width of the boundary line drawing on a title plan when "scaled up" may well be larger than the area of land in dispute. The combination of these two factors results in uncertainty as to where the exact boundary between properties may lie.
In an effort to mitigate these issues, best practice when recording the boundaries of a property is not only by reference to a plan but also specifying specific measurements and referring to physical features on the ground. But in reality, that is frequently not how the legal titles are recorded. Furthermore, even when best practice has been followed, disputes can still arise as historic maps, measurements, or descriptions may refer to physical features that no longer exist or have moved over time. The court or tribunal, therefore, may have a difficult challenge in establishing what the true boundary is, which in turn increases the uncertainty for those pursuing or defending such cases. All these factors may make mediation a more attractive option than litigation, and those advising parties to such a dispute ought to bear this in mind.
Remedies for Encroachment: What Are the Options?
Even where the legal boundary can be identified with some certainty, the challenge facing a party whose property has been encroached upon is not over. The remedies generally available in respect of encroachment are interdict (prohibiting any further encroachment), removal of the encroachment, or damages calculated on the financial loss suffered as a result of the encroachment.
The nature of these disputes, particularly those involving minor encroachments (such as the widening of part of an access road onto another's land), means that the encroachment will have been completed prior to any court action being raised. The remedy of interdict is inappropriate in such circumstances, as it can only prevent additional encroachment and not undo what has been done.
The remedy of removal is also not without difficulty, due to two competing legal considerations. On one hand, property law generally entitles an owner, subject to various exceptions, to exclusive control over their land. On the other hand, the law concerning civil remedies is that an available remedy must not be "disproportionate."
Where an encroachment has already been completed, the encroaching party has acted in good faith, and the encroachment is of a minor nature (whether that be by virtue of its area or its effect), the Court/Tribunal may well determine it disproportionate for such an order of removal to be granted. Whilst the Court/Tribunal will exercise this discretion not to order removal sparingly, it does occur perhaps more frequently than might be expected.
In addition to the requirement that the encroaching party acted in good faith, the encroachment must be inconsiderable and not materially impair the enjoyment of the property as a whole. This factor is of importance as it may be that the owner of the land has entirely lost enjoyment of that specific part of the property that has been encroached upon, but the relevant consideration is, in fact, the effect on the enjoyment of the remaining property. Furthermore, the Court/Tribunal will consider if the removal of the encroachment would cause such a degree of loss to the encroaching party as would be disproportionate to the benefit to the party who owned the land in question. In considering this final factor, the Court/Tribunal will take into account whether the encroaching party has offered compensation or if such compensation could be awarded by the Court/Tribunal. This brings us to the final remedy.
Why Prevention is Key in Encroachment Disputes
In determining an appropriate award of damages, the Court/Tribunal will consider future as well as past economic loss directly arising from the encroachment. That being said, in practice, it may be difficult to quantify that monetary loss. A common approach is to value the land with and without the encroachment, but in most instances, the difference in value is likely to be negligible where a small area is involved, essentially making any such claim uneconomic to pursue.
In summary, for a party faced with a potential encroachment, swift legal action is recommended to prevent the encroachment taking place in the first instance, given the potential difficulties in obtaining a satisfactory remedy. If the encroachment has already taken place, litigation can be very uncertain, and it is often wise to attempt to reach a mutually beneficial arrangement with the other party.
