Fri | Dec 9, 2016

A remedy for encroachments

Published:Sunday | November 30, 2014 | 12:00 AM

Good day, readers. I want to thank our guest contributor, Ms Joan Latty, manager at Victoria Mutual Property Services, for her contribution last week about things to consider when buying a house.

As usual, it was very informative and well received. This week, I will be looking at an issue that is of great concern to many of my readers: what to do when you have an encroachment or a breach of a restrictive covenant.

Many property owners get very exasperated and frustrated when they are informed by their commissioned land surveyor that there is an encroachment or breaches associated with their property.

Their frustration is normally magnified by the fact that most times, they are either trying to sell or purchase the property in question; hence, there is a time constraint in completing the transaction, and this cannot be done while there is an encroachment or breaches associated with property. This week, I will focus on encroachments, and next week, breaches.

In dealing with encroachments, there are really only two things that can be done. First, let's recap what is an encroachment.

Encroachment is a term which means "advance beyond proper limits". Essentially, it means that one person "advances" or violates his boundary limits by building something on the neighbour's land or allowing something to hang over the adjoining property boundary.

This usually happens when an owner is not aware of his property boundary or is aware and wilfully chooses to encroach. Note that the encroachment can be either a building (or its eaves/cantilever) or even a dividing fence incorrectly constructed. So an encroachment means that you have violated a property that is not yours.

You do this by overstepping your legal boundary, thus "advancing beyond your proper limits".

Correcting the problem

This tells us that some part of a building, structure or a boundary wall has overstepped your property boundary. If this happens, it can be corrected by removing whatever structure is encroaching on the adjoining property. If you have a wall that is incorrectly constructed and it encroaches on the adjoining property, or if it is a section of a building or some other structure, removing same will correct the problem immediately.

So you would consult your land surveyor, who would show exactly where your boundaries are and where and what section you need to remove to no longer be 'overstepping' your boundaries.

Depending on the size of the structure, it can be a simple task, but it could also be complex and very costly. However, there is another means of correcting the encroachment. You can make arrangements and negotiate with the owner of the property on which you have encroached to purchase the property, or at least the section on which your structure is encroaching on.

You would need to engage the services of a commissioned land surveyor, who would survey the section of the property that you are to acquire, and he would prepare a 'pre-check' and have it approved by the National Land Agency. Your attorney would then do what needs to be done to ensure that that section legally becomes your property. This will take some time and have various fees involved. However, in some situations, this is the best option.

So to avoid all this, whenever you are going to be doing any construction at all, consult a land surveyor so he can point out to you your boundaries so that you do not over step them.

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

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