Property disputes

Property disputes that need a clear path forward.

Neighbour conflicts, boundary disagreements, encroachments and nuisance claims handled with precision for Gold Coast property owners.

Talk to a lawyer Call (07) 5554 6116

Most property disputes start small. A fence goes up in the wrong place. A tree root lifts a driveway. A neighbour builds close to the boundary. By the time someone gets legal advice, the relationship has usually deteriorated and the question is no longer just about the physical object.

Queensland law provides a structured framework for resolving these disputes. The *Neighbourhood Disputes (Dividing Fences and Trees) Act 2011* (Qld) governs fencing contributions and tree-related damage. The *Property Law Act 2023* (Qld) addresses encroachment by buildings. Common law nuisance covers interference with the use and enjoyment of land that falls outside those statutes.

The right forum depends on what is in dispute. QCAT handles dividing fence and tree disputes within its minor civil dispute jurisdiction. The Magistrates Court handles nuisance and trespass claims within its monetary limits. More complex matters, or those involving significant property values, belong in the Supreme Court.

Getting the forum right at the outset matters. The wrong choice costs time and often money that cannot be recovered.

Scope of work

What we help with

Fraser Lawyers acts on property dispute matters, including:

Matter: What it usually involves
Dividing fence disputes: Contributions, standard of fence, fencing notices and QCAT applications under the Neighbourhood Disputes Act
Tree disputes: Damage or risk from overhanging branches or encroaching roots affecting neighbouring land
Boundary disputes: Disagreements about the correct location of a common boundary between adjoining lots
Encroachment by buildings: Structures that cross the common boundary, with court relief available under the Property Law Act 2023 (Qld)
Private nuisance: Unreasonable interference with the use and enjoyment of land, including noise, light, smell and smoke
Access disputes: Contested access across neighbouring land, including informal arrangements that have broken down
Trespass to land: Unauthorised entry onto or over land, including encroaching structures and root intrusion
View and light obstruction: Construction or planting that affects light or amenity, assessed against common law principles
Retaining wall disputes: Responsibility and cost for retaining walls on or near common boundaries
Threatening or obstructing conduct: Conduct by neighbours that crosses from a property dispute into harassment or intimidation

The legal basis for a property dispute shapes both the remedy available and the forum that can grant it. A fencing dispute is a QCAT matter. An encroachment by a building involves court relief under statute. A nuisance claim is common law and may require Supreme Court proceedings if the loss is significant. Identifying the correct basis early prevents the common mistake of pursuing the wrong remedy in the wrong place.

Many disputes can be resolved before proceedings are issued. A well-constructed letter identifying the legal position, the remedy sought and the consequence of non-response is often enough. When it is not, the preparation done before that letter becomes the foundation for what follows.

Process

What happens after you are charged.

The law does not require neighbours to get along. It requires them to stay within certain limits.

For dividing fence and tree disputes under the *Neighbourhood Disputes (Dividing Fences and Trees) Act 2011* (Qld), the scheme applies to adjoining landowners whose properties share a common boundary. QCAT has jurisdiction over disputes about the type, position and cost of a dividing fence, and about damage or risk caused by a neighbour’s tree.

Before QCAT proceedings, a fencing notice is usually required. The notice must identify the work proposed, include at least one written quotation, and give the neighbour a reasonable opportunity to agree. Failure to follow the notice procedure can affect costs and the strength of an application.

For encroachment by buildings, the *Property Law Act 2023* (Qld) empowers a court to grant relief where a building on one lot extends onto an adjoining lot. The court may order compensation to the affected owner, transfer of the encroached land, or the grant of an easement. The court weighs the competing interests and may account for whether the encroachment was deliberate.

Private nuisance claims at common law require the interference to be unreasonable, having regard to the nature of the neighbourhood, the degree and duration of interference, and the sensitivity of the affected use. Temporary or trivial interferences generally will not meet the threshold.

Dividing fence and tree disputes: governed by the *Neighbourhood Disputes (Dividing Fences and Trees) Act 2011* (Qld); QCAT jurisdiction.
Encroachment by buildings: court relief available under the *Property Law Act 2023* (Qld).
Nuisance and trespass: common law causes of action; Magistrates Court or Supreme Court depending on quantum.
Boundary location: survey evidence determinative; may require court declaration.

Fencing notices

The dividing fence procedure most people get wrong.

The *Neighbourhood Disputes (Dividing Fences and Trees) Act 2011* (Qld) creates a procedure before you can approach QCAT. That procedure is the fencing notice.

A fencing notice must describe the fencing work proposed, include at least one written quotation, and be given to the adjoining owner before work commences. If the neighbour does not respond within the prescribed period, or rejects the proposal, you may apply to QCAT for an order.

The common error is to proceed directly to QCAT without giving proper notice, or to give a notice that does not comply with the form requirements. QCAT may dismiss or adjourn an application where proper process has not been followed, which extends the dispute and adds to costs.

A second common error is assuming equal contribution is always the outcome. The Act sets out circumstances in which one neighbour may be required to bear more of the cost, particularly where the fence serves that owner’s interests disproportionately or where that owner damaged the existing fence.

Tree disputes follow a similar pre-QCAT process. A notice must be given to the tree owner before applying to QCAT for an order requiring removal, trimming or compensation for damage caused by roots or branches.

Jurisdiction

Choosing the right forum.

The choice of forum in a property dispute is not a technicality. It affects what orders are available, what evidence rules apply, and what costs consequences follow.

QCAT handles dividing fence and tree disputes as minor civil disputes. Its jurisdiction is accessible and relatively informal, but it cannot grant the full range of remedies available in the courts. It cannot, for example, award substantial damages for historical interference or make declaratory orders about boundary location.

The Magistrates Court handles nuisance and trespass claims up to its monetary jurisdiction limit. It is appropriate where the loss is quantifiable and modest, and the dispute is factually contained.

The District Court and Supreme Court are appropriate for disputes involving significant property values, complex questions of title, injunctions, or remedies not available in the lower courts. Encroachment relief under the *Property Law Act 2023* (Qld) requiring transfer of land or easement creation is Supreme Court territory.

A dispute that begins as a QCAT matter can become a Supreme Court matter if it raises title issues or if the relief sought extends beyond the tribunal’s power. Identifying the scope of the dispute early informs the strategic choice of where to proceed.

Time limits

Deadlines and risks.

Property disputes have no general limitation period, but delay creates its own risks.

For nuisance and trespass claims, the six-year limitation period under the *Limitations of Actions Act 1974* (Qld) runs from the date the cause of action accrued. A continuing nuisance gives rise to a fresh cause of action each day it continues, but historical damages outside the limitation window cannot be recovered.

For encroachment claims, delay can affect the court’s assessment of whether to grant relief and on what terms. A court may be less willing to order removal of an encroachment that has stood for years and been acquiesced in by the affected owner. Early action preserves options; delay can narrow them.

In fencing disputes, work done without a proper fencing notice may be difficult to recover costs for. Proceeding without notice and then seeking contribution through QCAT is not straightforward.

The practical risk in most neighbourhood disputes is not losing the legal argument. It is allowing the dispute to escalate to a point where the costs of resolution exceed the value of the underlying issue. Legal advice at an early stage usually offers the best ratio of cost to outcome.

What we do

How Fraser Lawyers acts in these matters.

Fraser Lawyers identifies the legal basis for the dispute, the remedy available, and the most direct path to resolving it.

Where a pre-litigation letter can resolve the matter, the firm drafts it with precision: identifying the legal position, the remedy sought, and the consequence of non-response. Where proceedings are required, the firm prepares the application, the supporting evidence, and the submissions.

For QCAT matters, Fraser Lawyers can appear or assist with self-represented applications. For Supreme Court matters involving encroachment, nuisance or boundary declarations, the firm manages the proceeding through to resolution. Where a surveyor or building expert is needed to support the claim, the firm identifies the appropriate expert and integrates their evidence into the matter.

Blake Fraser acts personally on property dispute matters. Clients deal directly with the Principal, not with a paralegal or a clerk.

Practical

Documents to bring.

Title search or Certificate of Title Confirms the lot boundaries and registered proprietor
Survey plan Boundary dimensions; identifies any existing encroachments
Photographs Of the fence, tree, encroachment or condition giving rise to the dispute
Any written correspondence with the neighbour Letters, emails, text messages
Fencing notice (if issued or received) Including any quotations attached
Quotations for fencing or repair work Relevant to contribution disputes
Building plans or permits If the dispute involves a structure near or across the boundary
Council correspondence If council has been involved in the dispute or issued any notices
Arborist or building inspection reports If a professional has assessed the tree, fence or structure
Records of loss or damage Repair invoices, loss of use evidence, professional valuations

Pathway

The likely path.

Step 1 — Initial advice and legal analysis.

Fraser Lawyers reviews the title, survey plan and any correspondence to identify the legal basis for the dispute, the remedy available, and whether a pre-litigation approach is likely to be productive. This step often clarifies the dispute significantly.

Step 2 — Pre-litigation communication.

In most cases, a letter identifying the legal position and the remedy sought is the first step. Many property disputes resolve at this point. A well-constructed letter is not a bluff; it is a statement of what the law requires and what will follow if it is not done.

Step 3 — Fencing notice or QCAT application (if applicable).

Where the dispute concerns a dividing fence or tree under the *Neighbourhood Disputes (Dividing Fences and Trees) Act 2011* (Qld), the firm prepares the fencing notice or QCAT application with the supporting evidence. QCAT matters are usually listed for hearing within a few months of filing.

Step 4 — Court proceedings (if required).

Where the dispute requires court relief, including encroachment orders, nuisance damages or boundary declarations, the firm prepares and files the originating process, manages interlocutory steps (including any injunction application), and prepares the matter for hearing.

Step 5 — Resolution and enforcement.

Whether by agreement, QCAT order or court judgment, the firm confirms the terms of resolution and, where necessary, takes steps to enforce the order. A QCAT order for fencing work is not self-executing; the firm advises on enforcement if the neighbour does not comply.

Frequently asked

Questions we hear often.

Plain-English answers to the questions clients tend to ask. If your question is not here, call us.

Get in touch

Do I need to give a fencing notice before going to QCAT?

Generally, yes. The *Neighbourhood Disputes (Dividing Fences and Trees) Act 2011* (Qld) requires a fencing notice to be given to the adjoining owner before applying to QCAT for a fencing order. The notice must describe the proposed work and include at least one written quotation. Failure to follow this process can affect the outcome of a QCAT application, including on costs.

My neighbour's building crosses onto my land. What can I do?

The *Property Law Act 2023* (Qld) empowers a court to grant relief where a building encroaches onto an adjoining lot. The court may order compensation, a transfer of the encroached land to the building owner (usually against payment), or the grant of an easement. The court has discretion and weighs the competing interests. Early legal advice is important because delay and acquiescence can affect the court’s assessment of appropriate relief.

My neighbour's tree is damaging my property. Can I make them pay?

The *Neighbourhood Disputes (Dividing Fences and Trees) Act 2011* (Qld) allows an owner to apply to QCAT for orders about a neighbour’s tree that is causing damage, poses a risk of damage, or is causing substantial, ongoing and unreasonable interference. You must give a tree notice to the tree owner before applying to QCAT. QCAT can order removal, trimming or compensation for damage already caused.

What is private nuisance and does it apply to my situation?

Private nuisance is an unreasonable interference with the use and enjoyment of land. It covers noise, smell, smoke, light, vibration and similar interferences. To succeed, the interference must be unreasonable in the context of the neighbourhood and must cause actual harm to the claimant’s use of land. Temporary or trivial interference is unlikely to meet the threshold. The remedy is damages and, in some cases, an injunction requiring the nuisance to stop.

We disagree about where the boundary actually is. How is that resolved?

The legal boundary is determined by the registered survey plan for each lot. If the parties cannot agree on the physical location of the boundary on the ground, a licensed surveyor can peg the boundary according to the registered plan. If there is a dispute about the registered survey itself, that is a more complex matter involving the Titles Office or, in contested cases, a court application for a boundary declaration. Getting a survey done early is usually the most efficient first step.

Can I recover my legal costs if I win?

In QCAT minor civil disputes, the general rule is that costs are not awarded unless a party has behaved unreasonably. In court proceedings, costs ordinarily follow the event, meaning the unsuccessful party is ordered to pay a portion of the successful party’s costs. This is not a dollar-for-dollar recovery; party-party costs typically represent 60 to 70 per cent of actual legal fees. The costs risk in property disputes is real and should be factored into the decision about whether and how to proceed.

Do I need a lawyer for a QCAT fencing dispute?

QCAT is designed to be accessible to self-represented parties, and legal representation is not required. However, legal advice before filing helps ensure the application is properly framed and the evidence supports the orders sought. Legal representation at the hearing can be useful in contested matters where the neighbour is represented or where the factual and legal issues are not straightforward. Fraser Lawyers can advise on a fencing dispute without necessarily appearing at QCAT.

Talk to Fraser Lawyers about your property dispute.

A short enquiry is usually enough to identify the legal basis for the dispute and whether there is a practical path to resolution. Fraser Lawyers is based at 86 Bundall Road, Bundall, and acts for clients across the Gold Coast and throughout Queensland.

Call (07) 5554 6116 Send a short enquiry