A building that intrudes upon an adjoining neighbour's land is an encroachment and will usually be covered by the Encroachments Act 1944 (SA). Any overhanging structure or any part of a building below ground that crosses the boundary can encroach, provided it is a substantial structure of a permanent character [s 2].

An ordinary boundary fence is not likely to be considered a structure for the purposes of the Encroachments Act 1944 (SA). However, the Supreme Court has previously held that a concrete driveway [Clarke v Wilkie [1977] SASR 134] and the combined structure of a brush fence sitting atop a concrete plinth and retaining wall [Hogarth v Karp [2013] SASC 159] are both structures for the purposes of the Encroachments Act 1944 (SA).

The Supreme Court has jurisdiction to hear disputes about encroachments [s 4], but another court may exercise powers under the Encroachments Act 1944 (SA) in any proceeding if it sees fit [s 11].

For information on fences that are not located on the proper boundary, see Common questions about fences.

If there is a dispute between adjoining owners about whether a building is encroaching or not, they can arrange for a survey or apply to the Supreme Court for a survey to be ordered [Encroachments Act 1944 (SA) s 10]. Once surveyed, a person must not deliberately tamper with survey pegs (unless permitted under the Act) as it is an offence under section 52 of the Survey Act 1992 (SA).

Where a building does encroach, either owner may apply to the Supreme Court for compensation to be paid to the owner on whose land the building encroaches and/or for the land encroached on to be transferred or leased to the encroaching owner, and/or for the removal of the encroachment [Encroachments Act 1944 (SA) s 4(2)].

In making its decision, the court will consider [s 4(3)]:

Section 5 of the Encroachments Act 1944 (SA) sets out the manner in which the court will calculate compensation.

Other legal actions relating to trespass are available to deal with an encroaching building. However, if any legal action has been taken by one owner (usually the one whose land is encroached on) in connection with these matters, the other owner can obtain an order that the matter be settled under the Encroachments Act 1944 (SA) alone [s 11].