South Australia
Encroachments Act 1944
An Act to provide for the adjustment of boundaries where buildings or walls encroach on adjoining land; to facilitate the determination of boundaries; and for purposes connected therewith.
Contents
1Short title
2Interpretation
3Jurisdiction
4Application to court in respect of encroachments
5Compensation
6Charge on land
7Encroaching owner—compensation and conveyance
8Adjacent owner—compensation and conveyance
9Vesting order
10Boundaries
11Suit, action, or other proceeding
12Persons interested
Legislative history
The Parliament of South Australia enacts as follows:
1—Short title
This Act may be cited as the Encroachments Act 1944.
2—Interpretation
In this Act, unless the context otherwise requires or some other meaning is clearly intended—
adjacent owner means the owner of land over which an encroachment extends;
boundary means the boundary line between contiguous parcels of land;
building means a substantial building of a permanent character and includes a wall;
court means a court which has jurisdiction in the particular matter;
encroaching owner means the owner of the land contiguous to the boundary beyond which an encroachment extends;
encroachment means encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil;
owner means any person entitled to an estate of freehold in possession—
(a)whether in fee simple or for life or otherwise;
(b)whether at law or in equity;
(c)whether absolutely or by way of mortgage;
and includes a mortgagee under a registered mortgage of a freehold estate in possession in land under the Real Property Act 1886;
subject land means that part of the land of the adjacent owner over which an encroachment extends;
the Land and Valuation Court means the Land and Valuation Court constituted under the Supreme Court Act 1935.
3—Jurisdiction
The jurisdiction with which a court is invested under and pursuant to this Act (excepting section 11 of this Act) shall be exercised by the Land and Valuation Court.
4—Application to court in respect of encroachments
(1)Either an adjacent owner or an encroaching owner may apply to the court for relief under this Act in respect of any encroachment.
(2)On the application the court may make such orders as it deems just with respect to—
(a)the payment of compensation to the adjacent owner;
(b)the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to him of any estate or interest therein, or any easement, right, or privilege in relation thereto;
(c)the removal of the encroachment.
(3)The court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters—
(a)the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be;
(b)the situation and value of the subject land, and the nature and extent of the encroachment;
(c)the character of the encroaching building, and the purposes for which it may be used;
(d)the loss…