There is a common misconception that s272 of the Property Law Act acts to prevent a landowner’s right to sue for actual physical infringement or encroachment of their property boundary when the infringement or encroachment is less than 50mm (50mm where the boundary is less than 40.3m, or 1/500 of the boundary length where it exceeds 40.3m).

This is not the case.  Where infringement or encroachment (by buildings or fences) is less than 50mm the landowner can still sue for trespass to land, they can still commence proceedings pursuant to the Fences Act for orders as to the correct position of a fence, or apply to the Land Titles Office pursuant to section 60 (adverse possession claim) or s99 (amendment of title boundaries) of the Transfer of Land Act.

The landowner may be the registered proprietor of the land, or may hold mature possessory title to the land (having been in exclusive possession for a period in excess of 15 years).

S272 only applies to claims relating to small boundary discrepancies arising in the sale of land and it does not limit claims of adverse possession and trespass to land arising from boundary discrepancies.

Where discrepancies do arise in the sale of land, general condition 3 of the Contract of Sale may mean that a purchaser could not rely on s272 to claim compensation for a discrepancy greater than 50mm (or 1/500 of the boundary length).  However the common law rule in Flight v Booth may mean that a purchaser could avoid a contract where the discrepancy is significant (usually a 5% or greater diminution in area would be considered significant).

For more information please contact our friendly and professional team at Peter Speakman & Co on 9822 8611.