When you buy a property in Queensland, the land it sits on is only part of the picture. Sometimes a building or structure extends beyond the legal lot boundaries — either onto a neighbouring property or over an easement. These encroachments are often regularised through legal instruments registered on the title. Understanding what an encroachment agreement looks like on your title search could save you from expensive legal disputes after settlement.
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What Is an Encroachment Agreement?
An encroachment agreement is a legally binding arrangement between two property owners that formalises a situation where a building, structure, or projection — such as eaves, gutters, footings, or even a garage — physically extends beyond the lot boundaries of one property and onto another. Rather than requiring the encroaching structure to be removed, the two parties agree to formalise the arrangement through a registered instrument on both titles.
In Queensland, these agreements are typically registered under the Land Title Act 1994 as either a building license easement or an express terms instrument. Once registered, the agreement binds all future owners of both properties — it doesn't disappear when the original owners sell.
Why Do Encroachment Agreements Appear on Titles?
Encroachments become a title issue when they affect the legal rights of adjoining landowners. If left unaddressed, a neighbour could theoretically demand removal of the encroaching structure. The encroachment agreement provides legal certainty by:
- Granting a formal right for the encroaching building to remain in place
- Defining maintenance responsibilities for the affected structures
- Clarifying who is liable if the encroaching structure causes damage
- Protecting both parties' interests in future property transactions
These agreements are particularly common in established urban areas where older homes were built before modern boundary surveying standards. They can also arise after renovations, extensions, or when a survey reveals that a recently built structure sits slightly over the boundary.
How to Find Encroachment Agreements on Your Title Search
When you conduct a title search through TitleFinder, encroachment-related instruments typically appear in the Schedule of Encumbrances section of the Certificate of Title. Look for registered documents with instrument types such as:
- Building License Easement — grants the right to maintain a projecting building structure over or under the neighbouring land
- Express Terms Instrument (Encroachment) — defines the terms under which an encroachment is permitted
- Party Wall Agreement — specifically addresses structures shared along or across a boundary
Request copies of the registered instruments through our Image of Dealing Instrument service ($91.80) to read the full terms. Key things to look for include: which structure is encroaching, the dimensions and location of the encroachment, maintenance obligations, and whether the agreement includes a right of entry for repairs.
Building License Easement vs. Express Terms Instrument
A building license easement is granted by the neighbouring landowner and gives the owner of the encroaching building a formal right to maintain the structure. It is registered on the title of the benefiting property (the one whose building encroaches) and is noted on the burdened property (the one being encroached upon).
An express terms instrument is used when both parties want more detailed conditions recorded beyond what a standard easement would cover. This might include provisions about sharing the cost of structural maintenance, restrictions on what can be built near the encroachment zone, or conditions that apply if one party later develops their land.
Both instruments create binding obligations on future owners, which makes them a critical due diligence item before you buy.
What Buyers Should Check
Before finalising your purchase, review any encroachment agreement on the property you're buying and consider the following:
- Maintenance responsibility: Who is obligated to maintain the encroaching structure? If it's the owner of the encroaching land, this could mean ongoing maintenance costs you're taking on.
- Right of entry: Does the agreement grant your neighbour the right to enter your property to maintain their encroaching structure? This is a common clause that affects your privacy and use of the land.
- Development restrictions: Some encroachment agreements restrict what you can build or renovate within a certain distance of the encroachment zone.
- Future removal: Does the agreement have an expiry date or require removal under certain circumstances?
- Insurance implications: Encroachments can affect building insurance premiums or coverage. Your insurer should be informed.
The Risk of Ignoring Encroachment Agreements
If you complete a property purchase without reviewing encroachment instruments, you inherit the legal obligations contained in those agreements. This could mean you're legally required to allow a neighbour onto your property to repair their encroaching building, or you could be liable for damage caused by a structure that technically sits on your land. In some cases, a neighbouring owner could pursue legal action for trespass or nuisance if an unregularised encroachment causes interference with their property.
A title search through TitleFinder gives you the full picture before you commit to buy. Our service provides the current Certificate of Title with all registered encumbrances, and our Image of Dealing Instrument copies let you read the actual terms of any encroachment agreement in detail.
When to Get Legal Advice
Encroachment agreements are complex instruments that can have significant implications for your property use and value. If a title search reveals an encroachment instrument you're not familiar with, we recommend consulting a Queensland property solicitor before settlement. A solicitor can advise on the practical implications of the agreement and whether any renegotiation with the neighbouring landowner is advisable before you buy.
Summary
Encroachment agreements and building license easements are registered instruments on Queensland property titles that formalise situations where buildings or structures extend beyond legal boundaries. They are legally binding on all future owners, making pre-purchase title searches essential. Review the full terms of any encroachment instrument before settlement, and seek legal advice if the obligations seem unclear or burdensome.
At TitleFinder, our title search services in Queensland give you the complete picture of what is registered against a property, including encroachment instruments. Order your current title search online and request copies of all registered dealing instruments for comprehensive due diligence.
