16cm into my title

[Patosan]

Boundary Encroachment

G'day all, hope to get some feedback on this one.

As some know I'm part way thru having 3 T/H constructed in Melb.
This week the concreter walked off as he was bullied by the PM of the neighbouring property. He'll be back to do the job later this week but the boundary issue behind it all is yet to be totally resolved.

It boils down to the neighbour being 16cm into my property.
The fence has been in the wrong postion for more than 20 years, they finished their construction about 3 years ago. My front T/H has the garage wall on the boundary and the neighbour has agreed to allow this, but wants the wooden fence to be redone in the same position ... on my land. They claim that if we don't allow this they have pics of the original fence and will go to court to not have to adjust their garden and a small part of their driveway.

On one hand it seems a simple compromise to let the fence stay in the wrong position as it's not a huge problem for me to lose some garden, and the neighbour hardly has any change. However I'm more concerned about the future. Such irregularities can put off potential buyers and will need to adressed at some time anyway. Also if they claim to have some "right" due to the fence having been there ... wouldn't I be strengthing that claim by allowing it to continue even longer ... making any change in the future even more difficult ?

So does the fence being on my side before they built give them some "right" to demand I don't fix the error ?

There would seem to be no better time to fix the whole situation than now, would putting it off make it more difficult in the future ?

Has anyone had such experience ?

Anyone with legal opinion ?

 

[asy]

Hiya Patosan,

What suburb is this in?

What your neighbour is doing is saying that they will claim 'adverse posession' if you don't agree to the fence being left where it is. The best way to extinguish this is to just move the fence. If the fence is in good order and is only being moved due to your building, and would otherwise not require replacement, then you are up for the full cost of the fence.

I would absolutely fix this problem now, as there's something called 'serious misdescription' of land, (which I wrote about here) . Unfortunately, as the parcel of land gets smaller, this sliver of land that's on the other side of the fence becomes more valuable. See?

If it were me, and I remind you to please speak to your solicitor, I would book the fence guy, tell him what's going on and have him move the fence in a hurry in one day. And then I'd take photos. LOTS of photos.

Let us know what happens...

asy

 

[Patosan]

Ta Asy,

The property is in Essendon.
The fence was going to be replaced some time this year as part of my construction, the neighbor got a quote to replace it and contacted us long before I'd thought it was needed. It is to be 50/50.
When in Melb recently I showed the neighbour the correct boundary line.
They organised with my project manager to replace the fence soon and very quickly had it pulled down. They however wanted to put the new fence in the old position, knowing it was wrong.

The project manager is sugesting a compromise in them allowing us to build the garage wall on the correct line, but the fence 16cm on our side. He claims it would save any legal hassle. As stated I'm concerned more about the long term. The concrete is being poured tomorrow, 19th May, then it's a question of where to put the fence.

Does the neighbour have any right to demand keeping 16cm of my land ?

 

[Macca]

Hi Patosan,

Must be hard doing these things long distance, but I would be using a solicitor if it was around the corner from home.

I would be trying to get it sorted ASAP by someone who is a specialist in RE law.

 

[XBenX]

Patosan,

IMHO its your property - dont agree to terms, build the fence on the boundary as it should have been all along...

Do you plans allow the garage to be built on the boundary - Id imagine so - since its wont be passed if its not - so what is there to be worried about?

Get onto your solicitor for guidance

Cheers,

Ben

 

[asy]

Agree with Ben.

DONT give the land away unless your neighbor is also willing to pay for an alteration of titles.

IF your project manager is suggesting you give in, I'd be keeping a darned close eye on them, as this sounds as if they are willing to take the easy way out of a problem. (sorry).

Essendon is quite high land value, and now that you have cut the blocks down, it makes the land all the more valuable. I believe that you may have a sale problem if you get someone who's savvy...

asy

 

[Patosan]

G'day all,

I got some legal advice today and seems that the neighbour has virtually no hope of claiming "adverse possession".

I called my project manager and he with the builder had devised some assistance for the neighbour to minimize the impact of losing what they had thought was theirs. Apparently they bought the site, 4 T/H completed from a builder who was aware of the boundary issue but didn't tell them. So our camp is aligned in the one direction of correcting the problem in the nicest way ... I was very pleased to hear his ideas and attitude ... over the phone. Often by email we don't get the full gist.

The concrete is to be poured today, meeting with neighbour next week, we're hoping that they'll appreciate my project manager's plans to minimize trouble and cost to them. Let you know outcome next week.

Thanks for your input guys.

 

[qaz]

Is it possible for him to buy the 16cm of land off you to save the legal drama?

 

[Patosan]

Is it possible for him to buy the 16cm of land off you to save the legal drama?

G'day qaz,

Well since the concrete is now poured and the front T/H's garage wall is right on the boundary I would have to sell the 16cm in front and behind it, rather than down the line. This would create an irregular block ... though only slight.

I would like to get more land ... that is the real asset not the buildings, so I'd prefer to buy some of his rather than sell bits of mine. Of course it's only small in this case, but then where do you draw the line ? If there was a "real" chance of legal action and delays to construction, then I'd be willing to look at alternatives ... that is clearly not the case here, from legal advice I've already sought.

 

[beech]

Hi Patosan, just wondering what street your development is in,might do a drive by?

Also who did you get to draw up your plans?
Got a site close by in Avondale Hts and need to start getting some plans done.

 

[Marney]

I agree with the above, Patosan. Think of the big picture and sort it out, once and for all, now. Good luck.
On another point, what exactly is 'adverse possession' and what are the main considerations with it?

 

[Patosan]

G'day Beech,

It's 142 Roberts St Essendon, down from Essendon Mazda in Keilor Rd.
The plans were done by Domus, they were selected by the project manager.

Hi Marney,

"adverse possession" ... well I only just heard it myself the other day on the phone from my solicitor. He told me all the reasons why they couldn't use it as a claim on the land. So my basic understanding is that it refers to land that has been in possoession, be it wrongly, for quite some time ... long enough to give some entitlement. You know the old saying "possession is 9/10" legally.

I certainly am not up on all this so would ask someone far more qualified than me, almost anyone, to assist in helping with that one. If you like I'll post all the reasons why they can't use it AFTER the issue is totally resolved. hopefully after the Tuesday meeting.

 

[beech]

G'day Beech,

It's 142 Roberts St Essendon, down from Essendon Mazda in Keilor Rd.
The plans were done by Domus, they were selected by the project manager.

Thanks Patosan i shall have a look.

Do you have a contact number for Domus?
Were you happy with their service and pricing?

 

[Marney]

"If you like I'll post all the reasons why they can't use it AFTER the issue is totally resolved. hopefully after the Tuesday meeting."

That would be good, Patosan, as we've all got the potential to be affected by similar situations when we don't expect it. I hope it all works out well for you.

 

[asy]

On another point, what exactly is 'adverse possession' and what are the main considerations with it?

HIya Marney!

Try doing a search for Adverse Possession, I wrote a few posts about it a couple of years ago, there should be quite a bit of info in the archives!

asy

 

[Marney]

Thanks, Asy. I had a look and now have a clearer understanding. I've learnt something new today. A little knowledge every day will get me there!
Another thing I would like to learn is: can I go directly to the Land titles Office to look at property titles? There seem to be a few legal companies offering access to this info but I'd prefer to do it directly myself if possible. My searches in this regard have been to no avail.
Thanks in anticipation for any responses.

 

[asy]

Another thing I would like to learn is: can I go directly to the Land titles Office to look at property titles?

Yup, you can, but it'll cost you.

The best idea is to make friends with a real estate agent (shock, horror!) as we have access to property titles (in a limited way).

Agent's don't have access to what mortgages are on the title (as a general rule).

hope this helps.

asy