IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No : 570 of 2007

BETWEEN:

JINESH PATEL
f/n Vinod Parshotamdas Patel
Plaintiff

AND:

AJAY NARAYAN
f/n Rup Narayan
First Defendant

SUVA CITY COUNCIL
Second Defendant

Mr. Nilesh Prasad for Plaintiff
Mr. Ritesh Naidu with
Mr. Mukesh Nand for First Respondent
Ms S. Saumatua for Second Respondent

Date of Hearing: 6th March 2008
Date of Judgment: 20th March 2008

JUDGMENT

BACKGROUND:

Boundary disputes even in the age of Torrens System of registration are not unusual. This is one such case. The plaintiff and the first defendant own adjacent lots of freehold land on Princes Road, Tamavua. A small part of defendant’s residence, footpath, and a tool shed encroach onto the plaintiff’s land.

The plaintiff became registered as proprietor of his freehold title CT 7284 on 24th July 2003. The defendant became the registered proprietor of his freehold title CT 7279 on 15th October 2007. Apparently neither of them carried out a survey of the land prior to purchasing it. When the plaintiff bought his land, it was a vacant lot. It was only in November 2005 that encroachment was noticed by the plaintiff. In 2007 he began construction of his house and fence and only then realized that part of defendant’s house was located on the boundary.

Attempts by parties to settle the dispute brought no acceptable results. The defendant was the first to file an action being HBC 558 of 2007 where the present defendant is seeking certain orders restraining the plaintiff from damaging or removing the fence and improvements.

The present plaintiff then filed this action seeking injunctions to restrain the first defendant from stopping the construction of the boundary fence and seeking an order for immediate demolition of the encroaching part of the building and fence. The parties were at cross purposes.

The parties it appears had overlooked the provisions of Section 109 and 110 of the Property Law Act and I invited them on the first call of this action to consider these provisions and they have done so. The submissions of the parties have proceeded on the premise that I treat the defendant’s application as an application for vesting order under Section 109 as the resolution of that issue would dispose of both actions.

SECTION 109 OF THE PROPERTY LAW ACT:

Section 109 of the Property Law Act empowers the court to grant certain relief where any building encroaches onto adjoining land. The reliefs which the court can grant, are a vesting order giving the encroaching owner an estate or interest in the land encroached upon or create an easement in favour of the encroaching owner or give the encroaching owner right to retain possession. To obtain relief the applicant has to show that the encroachment was –

1)	not intentional and
2)	did not arise from negligence 
3)	that it is just equitable to grant relief.

ENCROACHMENT BY DEFENDANT:

It is not in dispute that a part of defendant’s building encroaches onto plaintiff’s property. There is a concrete footpath beside the building. This footpath would not be there had it not been for the building. The footpath is used as access to bottom floor of the building. The word building in Section 109(1) is not confined to building in the strict sense but extends to "everything necessary to the integrity and basic usability of the structure itself": Anchorage Holdings Ltd. v. Stevenson & Another - (2006) NZHC 552.

Both the properties had at one time belonged to the brothers of the defendant. As such they may not have been too particular to ensure that the building was erected within the boundaries with proper setback which is normally the case where strangers own adjacent properties. I was told from the bar table that the defendant had acquired the property as a beneficiary under the will of his mother. The defendant did not erect the building. He says the building has been there for 20 years.

Mr. Prasad says the encroachment was intentional and grossly negligent. He submits that no permission of the Suva City Council had been obtained and therefore the structure was illegal. This non-obtaining of Council’s permission is confirmed by the Director Engineering Service of Suva City Council in his affidavit dated 22nd February 2008.

The obtaining of the permission was the responsibility of defendant’s predecessor in title. The defendant is presented with fait accompli.

The defendant’s building is double storey concrete building. According to the surveyor it encroaches 0.82 meters into plaintiff’s land. The surveyor has not stated for what length is this encroachment. I do not know if the encroachment is along the entire length of the building or part of it or confined to one corner.

IS DEMOLITION ORDER – PRACTICAL?

The plaintiff wants an order seeking demolition of the encroaching portion. That would be leaving a gaping hole and virtually removing a portion of the building. It would remove support on one end of the building and pose a severe risk of collapse of the entire building and endanger lives of the occupants. To demolish the building would cost substantial money and then to bring it back to habitable state would cost even more.

Opposed to this is the fact that the plaintiff has no structure close to this area. He only wants to build a driveway along the encroachment. The path of the driveway can be altered as it is in the process of being built and so can the boundary fence.

To sanction what the plaintiff is asking is in effect to use the coercive orders of the court for destructive purposes. If there are reasonable options available, then the court is not going to use its powers for destructive ends.

The only sensible thing to do and it is the just and equitable solution to the problem is to grant a vesting order to the defendant so the encroaching portion of his residence, garage and footpath remain where they are.

The vesting order would require an element of certainty. Hence the court requires a proper survey of the encroaching area both in terms of its length and width and area so I can grant the order with exact area specified. The plaintiff of course has to be compensated for the area he loses out on. I hope the parties can work out the compensation as litigation will probably cost them more than the compensation which may ultimately be ordered.

There is a septic tank chamber or the septic tank itself which is located at the rear of defendant’s shed. That chamber or septic tank must be removed by the defendant. It is sitting right on the boundary and probably causes future friction between the parties. It can be removed and also would not cost too much to remove to other part of defendant’s land. 

My present orders:

1)	The defendant is to remove the septic tank and chamber located at the rear of the shed within thirty (30) days;

2)	I grant vesting order but the defendant has to supply a proper survey as specified earlier so the exact details of area vested can be expressed with certainty. The survey is to be completed in fourteen (14) days;

3)	The plaintiff is to be compensated for the area lost;

4)	Cost reserved pending final vesting order.

[Jiten Singh]
JUDGE

At Suva
20th March 2008