Buying or owning a property in Queensland, only to discover that a wall, garage or deck crosses onto the neighbouring lot, is a situation with a clear legal framework and a range of practical outcomes. The same applies in reverse: finding that a neighbour's structure sits on your land. Neither situation automatically means demolition, and in many cases a negotiated resolution is possible.
Queensland's Property Law Act sets out what a court can do when a building encroaches on another person's land, and the law on adverse possession sets separate rules for long-term occupation of a boundary strip. Understanding how those two frameworks interact, and how boundary disputes differ from encroachments, is the starting point for working out where a particular situation sits.
The Brookwater Legal team helps clients across Greater Springfield and Ipswich with building encroachments, boundary disputes and property title matters.
Here is how building encroachments and boundary disputes generally work in Queensland, and what the available remedies look like.
Key takeaways
- A building encroachment does not automatically require demolition of the structure.
- Queensland's adverse possession time limit is generally 12 years from when occupation began.
- A fence in the wrong place cannot support an adverse possession application in Queensland.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
How does Queensland law deal with a building that crosses a boundary?
Where a building, which includes a substantial permanent structure such as a wall, overhangs or intrudes onto a neighbour's land, either owner may apply to the Supreme Court for relief under Queensland's Property Law Act. The court weighs who is applying, how the encroachment came about, its nature and extent, the value of the land affected, and the loss to each owner.
From those considerations, the court can order that the affected land be transferred, leased or made subject to an easement, that a survey plan be prepared, that compensation be paid, or that the encroachment be modified or removed. The court has broad discretion; demolition is one option, not the default. Where compensation is ordered and the encroachment was not intentional or negligent, the amount is at least the market value of the land affected. Where it was intentional or negligent, the minimum rises to at least three times that market value, according to Queensland's Property Law Act.
"A building encroachment does not automatically mean the structure has to come down. Queensland's Property Law Act gives courts a range of remedies, including transferring a strip of land, creating an easement or ordering compensation."
Jade Kickbusch, Principal, Brookwater Legal
What is the difference between a building encroachment and a boundary dispute?
A boundary dispute is about where the true boundary sits between two lots. A building encroachment assumes the boundary is known and asks what happens because a structure crosses it. The two often arise together, but they are resolved differently.
Boundaries in Queensland are defined by survey marks, usually white pegs at the corners of the lot, and by the registered survey plan. A boundary cannot be found by measuring from the kerb: the survey plan does not show the kerb's position relative to the boundary, according to Business Queensland. Where neighbours disagree about where the boundary sits, a registered cadastral surveyor is engaged to reinstate the marks. If the surveyor's reinstatement confirms an encroachment, the Property Law Act framework then applies.
A fence sitting in the wrong place is a separate matter again. Queensland's Neighbourhood Disputes (Dividing Fences and Trees) Act governs fencing disputes, and QCAT can determine where a dividing fence should sit. Importantly, enclosing part of a neighbour's lot by a fence or hedge that is not on the true boundary is defined as an encroachment under Queensland's Land Title Act, but that kind of occupation cannot support an adverse possession application.
What time limits and eligibility rules apply to adverse possession in Queensland?
Adverse possession is a separate legal concept from a building encroachment. It allows a person who has openly and continuously occupied land for a long enough period to apply to become the registered owner of it, according to Titles Queensland.
The starting point under Queensland's limitation law is that an action to recover land cannot be brought after 12 years from when the cause of action arose. However, Titles Queensland notes that in most cases an applicant will need to establish 30 years of adverse possession in practice. Where the original owner was under a disability when time began to run, the outer limit extends to 30 years in any case.
Several categories of land cannot be claimed by adverse possession at all under Queensland's Land Title Act:
- › Partial lots: an application cannot be made for only part of a lot.
- › Crown and local government land: land owned by the State or a local government is excluded.
- › Encroachment occupation: possession arising from enclosing part of a neighbour's lot by a wall, fence, hedge, ditch or garden bed that is not on the true boundary cannot support an adverse possession application.
When does this process not apply to a boundary or encroachment situation?
The Property Law Act encroachment framework and the adverse possession process are not available in every situation involving a cross-boundary structure or a disputed boundary strip. Several common situations fall outside them.
A tree that overhangs a boundary, or whose roots cross it, is not a building and is not governed by the Property Law Act encroachment rules. Tree disputes in Queensland go through QCAT under the Neighbourhood Disputes (Dividing Fences and Trees) Act, which has its own process and remedy framework. Similarly, a shared wall that is part of a house or garage on the boundary is not a dividing fence for the purposes of fencing law, but its status as a building encroachment depends on where the boundary sits and who owns each part of the wall.
Long use of a path or access route across a neighbour's land does not create a private right of way by prescription in Queensland. Queensland's Land Title Act expressly provides that no interest in land under the Act can be created by prescription. An access arrangement needs to be formalised as a registered easement to bind future owners.
Where a person builds on the wrong land genuinely believing they own it, Queensland's Property Law Act provides a separate remedy: they may apply to the court for relief as a person who made a lasting improvement on someone else's land in a genuine but mistaken belief that they owned it.
How does a solicitor help with a building encroachment in Queensland?
Working through a building encroachment or boundary matter with a solicitor generally involves a structured set of steps. Our conveyancing team helps buyers and owners across Queensland identify encroachment risks before they become disputes, and assists where a dispute has already arisen.
Step 1: Talk to us
Get in touch and we will explain how the process generally works and what the next steps look like for the specific situation.
Step 2: Identify the issue
We review the title search, the registered survey plan and any available boundary reinstatement reports to confirm what the encroachment involves, which lot is affected and what interests are registered against each title.
Step 3: Explore the options
We advise on the available pathways, which may include negotiating a boundary adjustment by agreement, applying to Titles Queensland for a transfer or easement, or making an application to the Supreme Court under the Property Law Act where agreement cannot be reached.
Step 4: Resolve and register
We prepare and lodge the documents needed to give effect to the agreed or ordered outcome, including any transfer, easement or survey plan, and ensure the title accurately reflects the result.
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What are the common mistakes people make with boundary and encroachment issues?
The most frequent misunderstanding is assuming that a fence marks the legal boundary. Fences are put up for practical reasons and are not always positioned on the true boundary. A property owner who treats the fence line as the legal boundary may be surprised when a surveyor reinstatement report shows the actual boundary sits differently, according to Business Queensland.
A related mistake is assuming that years of occupying a strip of land beyond the fence line has created legal ownership of it. The encroachment rule in Queensland's Land Title Act means that this kind of occupation cannot found an adverse possession application. The law specifically excludes it.
A third common error is failing to identify an encroachment before exchanging contracts. A title search reveals registered interests but not physical encroachments: a building that physically crosses the boundary may not appear on the title at all. An identification survey, ordered before exchange, is what shows whether structures sit within the lot boundaries. Where a buyer discovers an encroachment during the standard survey process under the contract, the contract gives them a right to terminate where the matter is material, or to seek compensation if they choose to complete.
What does the adverse possession application process involve in Queensland?
An adverse possession application is made to Titles Queensland, not to a court in the first instance. The applicant supports it with a statutory declaration covering the nature of the possession, how it was exercised, any improvements made, how the land was enclosed and evidence that rates were paid, according to Titles Queensland's Land Title Practice Manual. Declarations from at least two disinterested people are also required, together with rates payment evidence. Public notice of the application is given.
Titles Queensland then gives written notice to the registered owner of the lot and the owners of adjoining lots, and names a day at least two months after the last public notice by which objections can be lodged as a caveat. If no caveat is lodged in time, the applicant may be registered as the new owner with indefeasible title, according to Queensland's Land Title Act. A registered owner who disputes the application can file a caveat, which holds the application until the dispute is resolved by the parties or a court.
Frequently Asked Questions
Does a building encroachment in Queensland have to be demolished?
Not necessarily. Under Queensland's Property Law Act the Supreme Court can order a transfer of land, an easement, compensation or modification of the structure, as well as removal, depending on the circumstances of the case.
What is the adverse possession time limit in Queensland?
Queensland's limitation law sets 12 years from when the cause of action arose, but Titles Queensland notes that in practice most applicants need to establish 30 years of adverse possession to succeed.
Can a fence in the wrong place give rise to an adverse possession claim in Queensland?
No. Queensland's Land Title Act expressly provides that possession arising from enclosing part of a neighbouring lot by a fence, wall, hedge, ditch or garden bed not on the true boundary cannot support an adverse possession application.
Does long use of a path across a neighbour's land create a right of way in Queensland?
No. Queensland's Land Title Act states that no interest in land under the Act can be created by prescription, meaning long use alone does not create a legally enforceable right of way. A registered easement is needed.
What happens if someone builds on the wrong land by mistake in Queensland?
Queensland's Property Law Act allows the person who made the improvement to apply to the Supreme Court for relief, separate from the general encroachment process, where they genuinely but mistakenly believed they owned the land.
Do you need a solicitor for an encroachment or boundary dispute in Springfield or Ipswich?
A solicitor reviews the title, the survey plan and the physical situation, advises on the available remedies under Queensland law and prepares the documents needed to register any outcome. Both adverse possession applications and Property Law Act proceedings involve technical requirements that a solicitor works through with you.
How does a title search help identify an encroachment before buying in Queensland?
A title search from Titles Queensland shows registered interests such as easements and caveats, but does not reveal physical encroachments. An identification survey is what confirms whether structures sit within the registered boundaries before a buyer exchanges contracts.
Your Next Steps
Building encroachments and boundary disputes in Queensland are genuinely complex, and the outcome in any given situation turns on the specific facts: how the encroachment arose, how long it has existed, what is registered on the title and what each party is willing to accept. Identifying the issue early, whether before buying in Springfield or Ipswich or at the point a neighbour first raises it, gives the widest range of options.
If you're working through a building encroachment or boundary matter, the right advice early makes the process simpler. Contact the Brookwater Legal team or call (07) 3437 8555 to talk through where you stand.
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Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
