ENCROACHHMENT OF BUILDING Flashcards
Who can make an application for relief?
This is under s184 of the PLA
What is encroachment?
This is where part of a building straddles part of the boundary.
The basis for encroachment is trespass to land (Kelsen v Imperial Tobacco)
What happen if there is a lease holder?
The lease holder would get the owner to bring an action under s192 PLA.
What relief can be granted by the courts?
This is under s185 PLA
(2) includes matters that the courts can take into account.
Could be:
1. Conveyance of that part of the house, in which case there must be compensation
2. Easement for the life of the building
When do the courts have to give compensation?
Under s186 PLA: where there is conveyance, the minimum compensation is given.
If person was negligent: IT is three times the unimproved capital of the land (it is the value of the land without the house).
What is the tenant’s or builder’s role in a law suit because they ARE NOT OWNERS of the property?
The tenant can be joined under s193 and ordered to pay costs under s194 PLA.
What are the requirements that must be met?
The building must meet the definition under s182.
Ex Parte Van Achterberg - the definition of building: man made using building materials of the day, which are of a substantial and lasting character
How do you solve an encroachment problem?
- Check to see whether person has standing to bring an action
- If no, apply for a stay under s192
- The building must meet the definition of Ex Parte Van Achterberg.
- What relief can be granted and what factors should the court take into account.
S185(2) - take into account whether the person has done a survey.
In what scenario is it the norm to conduct a survey?
In a commercial building, it is the norm to conduct a survey. Where they have not conducted a survey, an order may be made against their favour.
