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Dealing with land encroachment disputes

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Boundary encroachments often do not come to light until a property is being sold (Photograph by David Fox)

With each square foot, acre and hectare of Bermuda’s landmass in high demand, ensuring your property’s boundaries are protected is paramount.

Over time, it is possible for a property’s boundary to overlap with a neighbouring property. Often, this is entirely unintentional and can arise due to old surveying methods, natural shifts in boundaries or even informal agreements between neighbours.

Unlike a leaking roof, a boundary encroachment often is not quite so noticeable and frequently will first be discovered when a property is sold after many years of ownership.

Encroachment in the legal sense is “when one person's property, whether it be fences, trees, buildings, or other structures, intrudes upon the land of another”.

A purchaser undertaking their due diligence will want to see an up to date survey/lot plan of the property being purchased, to identify whether the “on the ground” boundaries of the property or any adjacent property are in locations different from those shown on the paper deeds to the property.

When selling a property, the seller is under an obligation to deduce good title. An encroachment may prevent this as either the seller won’t be able to demonstrate they own part of the property (where they encroach on a neighbour) or where another property is exercising informal/unregularised rights over the property being sold by way of their encroachment.

Both instances can cause issues for a sale, resulting in delays, increased costs and potentially the sale not to proceed.

William Warnock is a senior attorney and head of the Real Estate Department at Chancery Legal (Photograph supplied)

There are occasions when an encroachment is of such a small or insignificant area of land that the decision may well be not to take action, effectively leaving the problem to be remedied another day.

However, where the encroachment is significant or too important to ignore, such as one that impacts a right of way, there are steps a property owner can take to remedy the matter.

Unfortunately, under the laws of Bermuda the involved parties cannot simply agree to a new boundary location or immediately convey encroached land between them. The encroachment must either be stopped or regularised.

Where a property owner seeks to regularise the issue, a new lot plan will be required followed by an application for planning consent to subdivide the property (necessary to comply with the Development and Planning Act 1974).

The application for subdivision will provide formal consent to amend/alter the boundaries of the interested properties. The process should take no more than three to four months.

Once consent for subdivision has been obtained the neighbours may then convey the encroached land from the original paper owner to the occupying owner, thus regularising the encroachment and restoring good title to both properties.

Who pays for the costs of the subdivision consent, legal fees and any premium for the land conveyed will need to be agreed between the interested property owners.

Whilst encroachments first come to light when a property is being sold, owners should familiarise themselves with the plans and surveys within the deeds to their property and be on the look out for potential issues as there are time limitation periods at play.

Boundary encroachments are intertwined with the law of adverse possession (often referred to as squatters’ rights).

Without detouring too significantly into this area of law, of note are the time limits that apply to claims to recover land that has been adversely possessed.

An owner whose property has been encroached upon by another, has 20 years from the date of the encroachment to take action to recover the land, once this 20-year period is elapsed (with one minor exception) then the Limitation Act 1984 (s16) prohibits the owner from bringing action to recover the land.

In any instance where an owner believes their property is being encroached upon or they believe their property is encroaching upon a neighbour’s land, it is important to seek professional advice from both a qualified surveyor and a property attorney.

• William Warnock is head of Real Estate at Chancery Legal Ltd. This publication is intended to cover the concept of encroachment. For further clarification or more detailed advice please contact our Real Estate Department. This publication should not be construed as legal advice and is not intended to be relied upon in relation to any specific matter. It deals in broad terms only and is intended merely to provide a brief overview and give general information

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Published April 08, 2024 at 7:55 am (Updated April 08, 2024 at 7:16 am)

Dealing with land encroachment disputes

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