Sat | Dec 10, 2016

A Matter Of Land:Help my land is being encroached on!!

Published:Sunday | January 18, 2015 | 12:00 AM

Good day, Readers! This week, we have a question sent in by a reader, posed to Leslie B. Mae, our guest columnist a few weeks ago. Below, he will respond to same.

Dear Mr Francis

I always read, with interest, your columns on land issues, some of which have no relevance for me but which I store in my memory bank as information to share with friends and acquaintances. I am now finding relevance in the matter of encroachments.

Mr Mae wrote last week that if the encroachment existed for over seven years, the landowner would lose his or her right to the land. My neighbour has encroached with an underground water tank for over 12 years. Shortly after the breach was discovered, my husband agreed to allow it to exist, and the encroachment went uncorrected. My husband and I are going into retirement years and I would like to have the breach corrected so that our children will not have difficulties correcting same.

The neighbour has agreed to have this done but, within the last year, it has only gotten as far as having a partial survey done.

My questions are: Do I still have ownership of the land? Is there anything that I can do to rectify the encroachment within a timely manner?

In relation to this week's article, the said neighbour has been creating a nuisance with a pig farm that is foul more often than not. I should here mention that the properties are five-acre lots in a rural community and there is no mention on the title that they were farming lots. The waste from the land is often washed down the hill on his property and covers a roadway at the back of the properties, which are owned by the original owner of the lands. The restrictive covenant speaks to no waste or sullage being allowed to drain onto roadways. Whereas I do not have any right to address this breach, the fact that it occurs results in the breeze blowing the odour into and around my home. The public health inspectors have only been able to temporarily effect improvement.

Do I have a legal right to peaceful enjoyment of my property even though it is farmland? I look forward to your response to the questions posed.

Regards,

-D.M.

Your question is a good one, DM, as you have every reason to be concerned and seek answers.

You have quoted me as saying that if an encroachment existed for over seven years, the landowner would lose his or her right to the land. In my article, I made it clear that there is a distinction between the registered title to land, and the boundaries of such land, and stated that all challenges for the rectification of acquiesced boundaries are barred after seven years. This is more clearly stated in Section 45 of the Limitation of Actions Act: "In all cases where the lands of several proprietors bind or have bound upon each other, and a reputed boundary hath been or shall be acquiesced in and submitted to by the several proprietors owning such lands, or the persons under whom such proprietors claim, for the space of seven years together, such reputed boundary shall forever be deemed and adjudged to be the true boundary between such proprietors ..." The seven-year period mentioned in the article only applies to acquiesced boundaries and not to adverse possession, for which the statutory period is 12 years.

There are two other issues raised by you, DM. The first issue is whether an encroachment over 12 years by an underground water tank built on her land by her neighbour can be remedied in her favour. Interestingly, DM, you admit that "after the breach was discovered, my husband agreed to allow it to exist and the encroachment went uncorrected". One of the conditions to claim adverse possession is that occupation must be hostile and adverse to the interests of the true owner. If a landowner has given a person permission to use the property, the possession is not considered hostile. In the reader's case, it could be construed that her husband gave permission for the tank to be constructed on their land and, as such, the occupation would not amount to adverse possession. You now wish to have the breach corrected and state that your neighbour has agreed to have this done. I am not clear as to what the neighbour has agreed to. Did he agree to remove the tank from your land and relocate it on his own land, or did he agree to correct the breach by claiming adverse possession of the encroached area? This could be a complicated legal issue. So, my advice would be that the reader consults an attorney-at-law for advice regarding this matter.

The other issue relates to a foul-smelling pig farm in the vicinity of the reader's house. She admits to not having a right to address the nuisance because the farm is not, presumably, immediately adjoining her property. The Public Health Act prohibits any person from permitting any action that will cause a nuisance on any premises owned or occupied by him. A nuisance is anything that is injurious to health, such as unreasonable noise or smell or pollution that defaces property. Essentially, any unreasonable invasion of one's interest in the free use and enjoyment of ones property is considered a nuisance.

The remedy for the reader is to have the medical officer (health) or the public health inspector serve notice on the offending party to abate the nuisance. Failure to abate the nuisance could lead to legal proceedings against the offending party for non-compliance. The reader has indicated that the public health inspector has tried but has not succeeded in effecting a complete abatement of the nuisance. Again, it might be that the reader will have to consult an attorney-at-law who will advise her of the options available to her to have the nuisance abated.

Keep sending your questions and comments and let's continue to explore A Matter Land. Until next time, traverse well.

Leslie B. Mae Licentiate I.A.A.S, F.N.A.E.A, B.S., M.S. (Real Estate Development)

Commissioned Land surveyor

Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted at craig_r_francis@yahoo.com or his Facebook page Precision Surveying Services