Wellington neighbours’ battle over century-old boundary problem ends in court
A Wellington couple have failed to get a judge to award them nearly quarter of a million dollars in a neighbourly dispute sparked by a decision made more than a century ago.
The problem began when Shashil Winspear, the owner of a coastal property on Queens Drive, Lyall Bay, wanted to do maintenance on a section of his home that encroaches on his neighbour’s property.
Under case law, the neighbours, Adam Collins and Jodi Turton, technically owned the roughly 7sq m portion of Winspear’s house that was over the boundary.
While both the couple and Winspear knew his house encroached about 1.4sq m over the boundary when they bought their respective properties, the issue prompted a court battle after the relationship between the two parties broke down.
How did the encroachment happen?
Winspear’s house was built on the property in 1913 when the land was just one lot. The couple’s house was built two years later, and in 1921 the land was subdivided into two lots, Judge Tania Warburton said in the decision from the Wellington District Court, published last month.
The subdivision caused the encroachment, but this was not recognised until decades later by different owners, and did not become a real problem until now.
Before Collins and Turton bought their house in 2013, they discovered the encroachment, and their lawyer at the time “warned them that they could be buying into a problem”, the judge said.
Turton told her lawyer they were confident they could tackle the issue as the property was worth the effort.
“I am aware that it won’t be an easy fix and potentially costly to fight it out and may not end [up being] resolved, but for me, that cost is worth the gain of what the property has to offer me and I am prepared to take that risk,” she said in an email to the lawyer.
Winspear bought the neighbouring property in 2020 and was advised by his lawyer that there would normally be an easement for an encroachment, but one did not exist here.
The lawyer said it was unlikely his neighbour would “make an issue out of what appears to be a minor encroachment”, but if they did then an easement could be sought.
Judge Warburton said there was no dispute that part of Winspear’s house was on the couple’s property.
“The legal position, then, is that Mr Collins and Ms Turton own part of Mr Winspear’s house and the land lying under it.”
She made a finding that the encroachment was a wrongly placed structure, defined under the Property Law Act 2007. The act allows the court to grant relief to parties affected by such structures.
How did the case end up in court?
The matter was not raised again until 2022 when Winspear sought to do maintenance work on his property where it encroached.
“It is clear from the documents that the relationship between the neighbours deteriorated until the proceeding before me today,” Judge Warburton said.
The practical issue of Winspear getting access to the property for the works turned into a legal standoff, with negotiations breaking down and the couple trespassing him.
They withdrew their consent for access and maintenance, forcing Winspear to negotiate through lawyers to be able to carry out routine maintenance.
What did the parties want?
The couple took the case to court, asking the judge to grant an easement in Winspear’s favour, but with an order that he pay them compensation of $228,200 plus interest accrued between October 2024 – when they filed the proceeding – to the date of the judgment.
The figure focused mainly on how much money Winspear would save by not having to move or modify his home.
The estimated cost of relocation was $930,000. The couple sought 20% of that sum, $180,000, as well as $14,000, which they noted his property value would increase by.
They also sought a percentage of that $14,000 to achieve a share of Winspear’s rise in value, and another $30,000 to factor in the permanent loss of the affected area, impacts on amenity, restrictions on development and the practical consequences of the proximity of the encroaching structure.
There was a stark contrast between their quarter-million figure and the $7000 compensation Winspear proposed instead.
“Counsel for [Winspear] submitted that compensation, if any, should be modest, taking into account that the encroachment was not created by either party, it has been in place for over 100 years, and that both the defendant and plaintiffs purchased their properties knowing of the encroachment and its history,” Judge Warburton said.
Winspear’s lawyers told the court there was no evidence the couple’s land would decrease in value or that they would lose any development opportunity.
They also argued the couple had not gone into negotiations in good faith, misrepresented whether they knew about the encroachment, and had not actively made any offers that could truly be accepted.
For example, the couple offered in early 2023 to swap the affected 7.31sq m of their land for about 150sq m of Winspear’s land at the back of his property, which their lawyers suggested was steep and less useable.
How the judge came to her decision
Judge Warburton said both parties wanted an easement granted, and agreed that compensation should be paid, though the amounts suggested were a “considerable distance apart”.
She said compensation should not be regarded as a financial penalty, and that it simply recognised one party should pay for the land they were receiving.
The judge was satisfied the cost for Winspear to move his house was irrelevant to compensation, particularly when the encroachment happened more than 100 years ago and neither party was at fault at the time.
“Both parties knew about the encroachment when they purchased their properties, and both will gain from a rectification of the boundary to enable them to sell their properties with clear title to a willing purchaser.”
The judge agreed to award compensation of $14,000, which was the agreed value of the relevant piece of land, and declined to allow an uplift recognising the increase in value for Winspear’s property.
She also declined the extra $30,000 for loss of development opportunities and other factors, saying the couple knew when they bought the property it was a narrow strip of land with an encroachment, and there was no evidence to show their difficulties developing it would be due to the encroachment rather than the narrow nature of the property as a whole.
Winspear will be liable for the costs of implementing the order to vest the land to him and must pay any claimed interest.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 12 years.