Boundary Errors, Building Encroachment, and Section 272 of the Property Law Act
By Michelle Janczarski, Solicitor, Lovegrove Solicitors
Plans and title documents are tremendously important in deciding the outcome of boundary disputes, but what happens if there is a slight difference between the actual boundaries as measured on the ground by a surveyor and the boundaries as described in the title documents? Unless there is an express agreement to the contrary, section 272 of the Property Law Act 1958 provides for a small margin of error in the written description of the boundaries of any parcel of land, compared to the surveyed boundaries.
As long as the difference between the documented and surveyed dimensions of the land is only minor (50 millimetres for boundaries shorter than 40.3m, or 1/500th of a boundary longer than 40.3m), section 272 prevents the bringing of legal action. If the error is greater than this small margin, then compensation is only available for this excess.
To give a simple example, a parcel of land is sold to a new purchaser. One of the boundaries is stated on title documents as being 10.50 metres long, but when surveyed is found to instead range from 10.43m to 10.47m long – that is, between 70mm and 30mm less than the dimensions given in the title documents. Because of section 272, the new owner of the property can only bring an action regarding those parts of the boundary above the standard 50mm margin of error, and compensation will only be available for the excess of up to 20mm above that margin.
Section 272 thus prevents legal action over minor discrepancies on the description of land in title documents compared with the results of a survey of the land. But can it also be relevant in disputes over building encroachment and fencing disputes? In other words, does section 272 prevent owners from taking action if works on a neighbouring property intrude onto their property by only a small amount?
Fortunately, the answer is no. As established in PCH Melbourne v Break Fast Investments [2007] VSC 87, section 272 only serves to ‘introduce flexibility into the dimensions shown on the title documents’ so that minor differences between the physical measurement of the boundary and its representation on the title documents don’t give rise to legal action. It does not affect an owner’s right to sue for an actual physical infringement of the boundary of the property. Thus building works that encroach onto a neighbouring property by less than 50mm may still be the subject of legal action, including adverse possession claims.
Lovegrove Solicitors is experienced in handling boundary delineation and building encroachment disputes, and can offer advice and assistance to help you through the process.
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© Lovegrove Solicitor’s 2014
