boundary dispute

[tobe]

Hi,
My first investment, bought about 12 years ago now, is a small miners cottage in ballarat. build about 100 years ago. Anyway, the neighbour emailed me through the agent and said my driveway was actually a shared driveway, and he would like to pull down my fence and use it too. he is also putting in a garage, whose wall will become the new boundary, where the old fence was, which will impact on my old shed that is there currently.

I went back to him with a bit of a no, and if you havent done a suvey when you purchased its a bit had now, but Im happy to try and get a compromise etc.

Whats the deal here? If it does show a 'shared driveway' on title (how do I get a copy of the plans by the way....) but this driveway was fenced for donkeys years, has the neighbour got a right to ask for shared access?

 

[DaveM]

Get plans from council. A title search will also show rights of carriageway for each lot.

 

[jrc]

From memory, in Victoria, provided the fencing occurred a fair while ago then the fencing will represent the boundaries of the property even if this differs to the title. See your solicitor before you agree to anything

 

[XBenX]

Depends on the state but might be worth doing some reading on adverse possession

http://somersoft.com/forums/archive/index.php/t-54045.html

 

[tobe]

got a copy of the plans, waiting for the solicitor to give me a call back.....

 

[Aaron_C]

tobe if I were you I would take some photos of the fence now before they move it to establish where it was/is/should be. I've had a similar problem with my land which is very, very annoying as the neighbour has taken down the original fence and planted some trees there instead. He won't make a claim of adverse possession I think (no fence or structure was erected) but just make sure you get all the facts ready.

 

[tobe]

hmm, got a call from the solicitor, adverse possession means its dificult to move existing fences. shared drvieways are extinguished through lack of use.

gave the neighbour a call, who seems very nice. he is going to shoot me through a copy of his garage plans once they are ready and then I can decide how to proceed. Id like to keep on the right side of people, whats the saying... good neighbours make good fences, or some such....

 

[tobe]

tobe if I were you I would take some photos of the fence now before they move it to establish where it was/is/should be. I've had a similar problem with my land which is very, very annoying as the neighbour has taken down the original fence and planted some trees there instead. He won't make a claim of adverse possession I think (no fence or structure was erected) but just make sure you get all the facts ready.

managing agent is going to take some photo's for me tomorrow.

 

[Scott No Mates]

One of my neighbours a few doors up had to put a garage into his development to ensure that the 'unused' driveway (dual lot development to units) remained in use and that the adjoining property didn't get possession of a section of the land.

 

[lizzie]

So Tobe - now that you've seen the plans etc does that mean the driveway IS a shared access drive?

If so, surely it showed up as such during your purchase and you would have been made aware of it (if you solicitor/conveyancer was any good) - but who can remember 2 years ago, let alone 12.

 

[tobe]

Well obviously I dont want to commit anything to the internet that might harm my chances in any future lawsuit, BUT, when I bought the property (my first ever) I was more concerned with the building report which seemed absolutely catastophic, and the enormous debt burden I was taking on (70k on a wage of 30ky)....

I do remember going to the library and searching the mineshaft registry (Ballarat had mine shafts all over town during the gold rush), however it noted there could be a 50 metre discrepancy from the map to real life, and only the legal shafts were mapped....


Interestingly the second investment property I bought a year later does have a shared driveway, which is still in use.

 

[tobe]

sorry, back to the question. yes its an 'old title' and does show a 'right of carriageway over the road colored brown on the said map'.

the road is 8.6 by 41 (feet I guess) and the house block is 8 by 77. Losing the carriageway would be fully a 3rd of the land.

The legal advice I recieved was that the 'right of carriageway' was well and truly extinguished as it has not been shared for some time. It isnt a public road, and never has been, it was only meant as access.

Geez, 8 feet doesnt sound like much....

 

[tobe]

http://maps.google.com.au/maps?q=10...oOOeX3ho2y4P9w&ei=lwrlUNWrNKXumAWK1YHICw&pw=2

 

[tobe]

This is really odd now. the title plan shows two frontages, one for the house and one for the road, being 8 feet each, however in practice the road would be maybe 6 feet, and the house frontage at least 12 if not fifteen feet.

I reckon the right of carriageway wasnt respected when the house was first built 100 years ago, and the house is partly built over it.

this is doing my head in, Im going to have to get it surveyed....

 

[westminster]

This is really odd now. the title plan shows two frontages, one for the house and one for the road, being 8 feet each, however in practice the road would be maybe 6 feet, and the house frontage at least 12 if not fifteen feet.

I reckon the right of carriageway wasnt respected when the house was first built 100 years ago, and the house is partly built over it.

this is doing my head in, Im going to have to get it surveyed....

Sounds like a plan. The local Council may be able to offer some advice as well.