Whether a hedge is a fence matters because it can mean the difference between relief under the Property Law Act and the end of your ability to use a neighbour's land. You might seek relief under the Property Law Act where you discover after many years, for example, that part of your drive way is actually on your neighbour's property. Your neighbour now wants you to stop trespassing. You have been using the driveway for years and there is really no other access. What can you do?
Well, if you cannot reach agreement on a formal easement, one step is to seek an order from the court declaring that you are entitled to buy or use the disputed land. That authority is found in section 36 of the Property Law Act. However, such relief is only available if either "a building encroaches . . . on adjoining land" or "a fence has been improperly located so as to enclose adjoining land". So, if your driveway is discovered to be over the property line, you will need to persuade the court it was "fenced" off from your neighbour if you are going to get a court ordered easement or transfer.
The term "fence" is not defined in the legislation and the courts interpret that word liberally. The test has been met in cases where an old fence has partially fallen down; where it is made up of hedgerows, trees and fencing; where it is a retaining wall; and where a pile of linearly place stones marked an effective boundary. As one judge described it, a fence is "a structure of any kind, provided it serves the purpose of either enclosing property or separating contiguous estates." If you are able to satisfy this test, the court moves on to consider whether you are entitled to the remedy you seek.
This depends on matters such as how it is the parties were unaware of the real property lines, how big the encroachment is, how long it has been there, have there been improvements, what is the cost to move them and what is the effect of the encroachment on the present and future value of the lands. From the court's perspective, the task is to resolve boundary disputes in an equitable fashion.
Two recent cases demonstrate different outcomes. In the first case, two stratas got into a dispute when it was discovered a small section of the driveway into one was actually on the property of the other. This had been the case for decades and was only discovered when someone had a survey done. The curved driveway was bordered by a row of cedar trees believed to have been planted by the original developer. Everyone had always thought the trees sat along the property line. The court found the trees were a "hedge" within the meaning of the Property Law Act and ultimately ordered that the sliver of driveway be transferred to the trespassing strata (with compensation to the other strata). The reasons given by the court included the length of time the driveway had been in use, the permanent nature of the driveway, the cost to provide alternate access and the disproportionate effect on the two stratas if the driveway could no longer be used. For one strata it provided crucial access, for the other its loss was "negligible".
A second case went the other way. Here, a large barn and nearby shed turned out to be protruding onto the next door property. They had been there for years and were surrounded by a fence enclosing them with the barn owner's land. The barn and shed could not be moved and were used daily by their owner. The total area of the encroachment was about 7,100 square feet in properties that were each 10 acres in size. Yet, the court held the barn, shed and fence had to be removed as the trespassing owner was not entitled to relief under the Property Law Act. The single biggest reason for this result was the court's finding that the barn owner had always known his buildings encroached on the neighbour's land. The Property Law Act only applies to situations where the party seeking the easement honestly believed that the land was his or was genuinely unaware of the true legal ownership.
If you are unsure of your property boundaries and discover that you may be trespassing on your neighbour's land, it is possible to regularize this situation by way of a court ordered easement or transfer if the trespassed portion is significant to you. Whether you get that court order depends entirely on the evidence you are able to marshal in your favour.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
