week nine Flashcards
can encroachment happen in the air space
yes
what is the ‘land affected’ with wrongly placed structures
the land on which the structure is situation
what is the ‘land intended’ with wrongly placed structures
where it was supposed to be
does it matter under the Property Law Act 2007 if encroachment was done deliberately
no, although you will get more hammered in terms of compensation or what the court will require you to do if it was done deliberately
what things might the court do in the situation of wrongly placed structures
grant an easement in favour of B over A’s land, order removal of the offending structure, alter the titles so the whole boundary moved, grant a right of possession
who can apply for relief under s321 - 325 (wrongly placed structures) of the Property Law Act 2007
A or B or any other person involved in A or B - a wide umbrella of people
the court will grant relief (for wrongly placed structures, Property Law Act 2007) if it is considered ___ and ____
just and equitable
the court can’t grant relief under s321-325 Property Law Act 2007 (wrongly placed structures) in relation to fences, why?
because fences are covered by the Fencing Act
any award made under Property Law Act 2007 s 321 - 325 (wrongly placed structures) does not stop you from suing in what type of action
a tortious action
unjust enrichment under s 321 - 325 Property Law Act 2007 (wrongly placed structures) goes to whom?
it could go either way, but it is more likely to be B who has a part of their structure sitting on someone elses land
what is included in the definition of a structure under the PLA 2007
any building, driveway, path, retaining wall, fence, plantation or other improvement
what is included in the definition of land under the PLA 2007
any piece or area of land, including the airspace over that land, and, in the case of land actually occupied by a wrongly placed structure, also includes any land reasonably required as curtilage and for access to the structure”
in the case of a wrongly placed structure, the court must only grant relief if it is satisfied that it is ___ and ____ to do so
just and equitable
equity assists the vigilant, not those who ?
sleep on their rights
what happened in Kiel v Thompson
Appellant Kiel erected a concrete wall inside his boundary to prevent further encroachment after his neighbour laid a concrete drive and garage over the boundary
he contributed to the problem by building this wall and doing nothing for 40 years, depriving himself of his strip of land
successive owners purchased the neighbouring property believing the garage and driveway formed part of the land they were buying
