property boundaries – what do they mean for you?
A property boundary defines the extent of legal ownership of an area of land, and can only be determined by a licensed surveyor. Under Torrens Title, land must generally also be accompanied by a survey of the land
The traditional rule relating to boundaries comes from the Latin ‘cuius est solum, eius est usque ad coelum et ad inferos’, meaning ‘one owns the land from heaven down until hell’. Unfortunately, this maxim doesn’t quite stand up in modern times.
how do natural boundaries work?
Natural boundaries are defined by a natural feature of the land, such as the shoreline of a river. They can sometimes cause problems, as natural features of the land can change over time – land boundaries can be modified by ways of erosion (loss of land), and accretion (accrual of land). In cases of erosion or accretion, title passes to the adjacent owner, or the Crown.
A notable case from 1982 which involves natural boundary modification, is Southern Centre of Theosophy Inc v South Australia, where 20 acres of new land (as a result of the retreat of water and gradual movement of sand) were held to be added to the estate by way of accretion.
Accretion is only recognised, however, when it occurs naturally. Someone cannot gain land if it’s done so intentionally.
A dispute over where a boundary is located can usually be resolved by having a licensed surveyor complete a survey of the land – this involves marking the boundary according to the land title documents on the ground or on an existing structure.
what is encroachment and how does it work?
Encroachment is the permanent intrusion on someone else’s land by a structure, which can occur more often than you may think.
The Encroachments Act 1944 of South Australia allows a court with jurisdiction to make orders of compensation. This could come in the form of the removal of the encroachment, payment of compensation to the adjacent owner, or conveyance of the land to the encroaching owner.
Interestingly enough, according to the South Australian case of Carlin v Mladenovic, the Encroachments Act 1944 only applies where a structure straddles a boundary, and not where the structure is located entirely on the wrong land.
Any order for compensation to the adjacent owner may be registered with the Land Titles Office as an encumbrance on the encroaching owner’s land.
can airspace be owned?
According to the New South Wales case Re Lehrer and the Real Property Act, property in airspace has been recognised by the common law and is most properly classified as real property.
The case of Bernstein of Leigh v Skyviews & General Ltd tells us that rights in airspace are restricted to such height as is necessary for the ordinary use and enjoyment of land and the structures on it. This means that trespass onto someone’s property through airspace is possible, such as by the protrusion of a shop sign over an adjacent property.
can you have rights below the ground?
The case of Di Napoli v New Beach Apartments Pty Ltd provides some protection to landowners, by providing that estate holders maintain control over the soil to a ‘considerable depth’. In this case, the defendant was made to remove underground rock anchors which were intruding on the plaintiff’s land.
If you’re lucky enough to find gold on your property, did you know that you might not be entitled to it? The judgment in the 1568 case of R v Earl of Northumberland holds that all gold and silver belong to the Crown. Even if you find any minerals within your land that aren’t gold or silver, the Mining Act 1971 of South Australia still expressly states that all minerals belong to the Crown.