People often describe any disagreement with a neighbour about their property line as a “boundary dispute.” Legally, though, a fencing dispute and an encroachment are different problems, governed by different Acts, with different remedies available. Using the wrong process can waste time and weaken your position.
Fencing disputes
A fencing dispute involves an ordinary dividing fence and is governed by the Fences Act 1975 (SA). It covers who should contribute to a new or replacement fence, the notice process for proposing work, and what happens if a neighbour disagrees. Unresolved fencing disputes are generally heard in the Magistrates Court of South Australia.
Encroachments
An encroachment is a different problem entirely. It occurs when a permanent structure — a garage, shed, carport, driveway, retaining wall or part of a building — extends over the boundary onto a neighbouring property. Encroachments are governed by the Encroachments Act 1944 (SA), which gives the court a different set of remedies, potentially including ordering the structure removed, ordering compensation, or in some cases allowing the encroaching owner to acquire or lease the affected land.
Why the distinction matters practically
The correct process depends entirely on which situation you are actually in. Sending a fencing notice about what is really an encroachment issue, or vice versa, does not resolve anything and can cost you time you did not need to lose. If you are not sure which applies to your situation — and many people genuinely are not, since both can look similar at first — getting early advice on the correct pathway is worthwhile before you send anything in writing.
Frequently asked questions
Can a single situation involve both issues?
Yes, it is possible for a property to have both a fencing disagreement and a separate encroachment issue, particularly on older allotments where boundaries and existing structures do not neatly align.
Does the age of the structure matter for an encroachment claim?
How long a structure has existed can be relevant to what remedy a court considers appropriate, though it does not automatically resolve the matter either way.
See our page on Fencing & Encroachment Disputes for how each process works, or contact WPI Lawyers to discuss your situation.