Boundary encroachment - liability issues

[Lammo]

Hi

Have been a long time browser of this forum and have learned a great deal. I'm hoping that someone can point me in the right direction.

I have been recently informed by the owner (developer) of the vacant lot next door that my garage is encroaching his property by 3cm for the length of the boundary. It's only a slither of land, however it is an issue.

At this stage, we both are wanting an amicable solution - the best being a transfer of title of the slither over to me. No compensation is being sought, however the developer insists that I pay for the cost of surveying and lodgement of documents to council etc. The cost of this is approx $7300 (ex GST).

I assume that in a situation like this, I would be able to get compensated by my builder through his/her insurance. The problem is that I purchased this property via a mortgagee sale. Has anyone had any experience with a similar situation and if so, what recourse did you/they have?

Although I see this as a good solution, I simply don't have the cash to cover the costs.

Also, should I be questioning the accuracy of the survey? Are inaccuracies a regular thing?

Grateful for any input or advice

 

[Peter_Tersteeg]

My understanding is that with modern equipment, surveyors can be that accurate. They can also make mistakes.

$7300 seems awfully steep however. The developer would have to employ a surveyor regardless of the results, so I don't see why you should compensate them for this component at all.

Do your own investigations into how much it will cost for the council to amend the title. 50% of that cost might be reasonable, assuming no other changes to the title need to be made (which would further reduce their claim).

Realistically though I'd be unlikely to componsate them for anything if they want their development to proceed...

 

[Lammo]

Good points PT_Bear, thanks. This is how they have costed the process:

Preparation of Development Application $750
DA lodgement fee $1,360
Field Survey $1,500
Plan sealing preparation $500
Plan sealing application fee $620
Project Management $2,500

I'm not familiar with the process of surveying etc, but assumed that it wouldn't be THIS expensive considering - as you say - the developer would have required a survey anyway. Further, I am wary of the PM cost and what this actually entails.

I will take your advice though and double check with Council. I agree with you that it seems to be more in their interests to rectify this issue considering they are looking to sell.... that said, the last thing I need is for it to escalate.

Thanks PT

 

[Macca]

I would go and have a chat to a local surveyor/engineer, they can usually give you a fairly accurate summary of the costs to expect.

 

[RPI]

Hi Lammo
1. Is there any chance that at the time of the building of the Garage that the same person owned both blocks of land? If this is the case then at the time of construction legally there was no trespass or nuisance and on sale of the land to another party there is no wrong which can be continued. This ties vendor and all successors in title and nothing need be done about it.

2. If 1 does not apply. An agreement for nil compensation is a good thing. Compensation could be payable and would depend on whether there was any negligence or intent on the part of the owner when it was built. If no negligence then minimum compensation in Qld is the UCV (find UCV on neighbours notice divide by total sqm and times by sqm of encroachment.) IF there was negligence or intent then minimum compensation payable is 3 times UCV of encroachment. Lack of survey for a built to boundary garage could be considered negligent.
3. A transfer is not actually necessary. You could also go for an easement or a long term lease. Is the encroachment going to effect the developer at all, ie were they planning on building to boundary. IF not you could try making an offer for a long term lease (more than 3 years but could try to go for 99 years). Lease could be something like $200 per year payable on 15 December, this christmas present each year would not be a hard sell to a buyer and no DA or survey would be required. Lawyer should do up lease though. Could also request an easement mid way cost between Lease and DA.

4. DA costs are not unreasonable. Is basically passing on council fees and charging $2500 to do the whole thing for you. Survey looks a bit high but they may be doing some of the related reports necessary. The DA for a boundary change is only code assessable (only when it is a slight change like this, if it was 2 lots into 2 but you were reorienting the lots then this would be a subdivision). If you did all the drawings yourself, planning reports, filled out the paperwork you could prob get the survey cost cut in half (assuming that there is an easy ref point) and you would lose the PM fee and prep fee.

5. As a word of warning, the last one of these I was involved with cost the encroaching party over $20k in legal fees for their own lawyer (the opposing lawyer was a pain in the **** and made it very difficult) and they had to pay opp legals as well on top of the costs for boundary realignment above. There was no compensation payable in that case but $400 an hour adds up pretty fast when you have to push hard.

Hope that helps, any questions just ask and I will see if I can help.

 

[Peter_Tersteeg]

Preparation of Development Application $750
DA lodgement fee $1,360
Field Survey $1,500
Plan sealing preparation $500
Plan sealing application fee $620
Project Management $2,500

I'd be figuring out which of these charges would be applicable to the developer as part of the normal development process and which are a result specifically of the problem created by your garage.

I'd only consider paying fees applicable to the later, and even then, as it's the developer pushing and benefiting from these changes, I'd want a lot better than a 50/50 split.

At the same time though, I'd want to avoid any potential legal issues.

 

[Lammo]

RPI - re point 1; my understanding was that a previous developer owned both blocks before going under. Is this rule under legislation? Could you clarify this point?

In relation to point 4 - could you clarify what code assessable is? I'm also willing to do as much myself as possible to reduce the cost - would you recommend this course of action?

The developer and I have discussed the possibility of easements, however he is unwilling to go down that path as it will taint his land upon selling.

PT - good point about the costs. I was of the understanding that the cost would be minimal as a lot of the services would have been required during the development process. It's a sticking point for me as it's all foreign territory...

In either case, I want to avoid the legal stoush that could result. Thanks guys for all your input... really helpful stuff.

L

 

[josko]

Hi lammo,

I find this whole problem of encroachments of 3cm and the like absolutely ridiculous.

I still have some guy coming into work with his old termite eaten peg that was put into the ground 15yrs ago by our office....complaining because he errected a fence ten years ago..personally...and blames us that it is yep....3cm off according to his neighbor.

Survey sounds REALLY high. Survey report around here usually abt $695. Would do cheaper for one side boundary. Not sure about DA's in QLD sorry but also seems on the higher side.

PT Bear:

I'd be figuring out which of these charges would be applicable to the developer as part of the normal development process and which are a result specifically of the problem created by your garage.

I'd only consider paying fees applicable to the later, and even then, as it's the developer pushing and benefiting from these changes, I'd want a lot better than a 50/50 split.

Sounds completely reasonable. Ring your local Surveyor, they will know the rpocess and be able to tell you rough Council costs etc. Then you'll get the facts.

All over 3cm...ridiculous!

Regards JO

 

[RPI]

Ok re pt 1. if this is the case this is your out. The common laws view of an encroaching building is that where there is no damage it is a continuing trespass and where damage can be proven it is a continuing nuisance.

If both blocks of land where owned by the one party at the time of the building encroachment there is no trespass or nuisance. Billet v Commercial Bank of Australasia [1906] SALR 193. This was also held to be the case in Bolton v Clutterbuck [1955] SASR 253 even though the overhang was by 6 feet. The courts have held that this does not constitute an encroachment and that there is no requirement for either the building to be removed or for the affected peace of land to be transferred to the person whose building is over the other boundary. Therefore the neighbour can not make you do anything, they court will not order a transfer, nor compensation nor demolition.

If the neighbour wished to transfer the land to you and you were agreeable then there is nothing stopping them doing that but the cost burden should fall on them.

As a caveat I am not giving you legal advice here. These cases are South Australian and as such a QLD court is not bound to follow the outcomes dues the legal premise of Stare decisis. However the literature and legal commentary believes that this would be applied in QLD courts and as such it is pretty much accepted as law here. I think it would be a brave lawyer who advised his client to try and bring an action in this sort of situation as the chances of having costs awarded against would be high. BUT there are no guarantees in a common law situation there is always a chance that you can lose the unloseable case and win the unwinnable but on balance this seems to have fairly clear cut outcome. You can either discuss this with developer and see if he is happy to leaver it or if you don't think they are that kind of person you could go and get a written advice from a lawyer and then show that to him. Suggest you find a property lawyer as opposed to a general practitioner, this is my area so it would take me under an hour to provide advice so would be south of $400, however a general layer may take several to put it together and so could cost you a lot more. A suburban specialist property lawyer would be better than a city or mid to top tier firm as the suburban guy in Brisbane should be around the $400/hr where as you are looking at $600 plus in the city.

 

[josko]

If both blocks of land where owned by the one party at the time of the building encroachment there is no trespass or nuisance. Billet v Commercial Bank of Australasia [1906] SALR 193. This was also held to be the case in Bolton v Clutterbuck [1955] SASR 253 even though the overhang was by 6 feet. The courts have held that this does not constitute an encroachment and that there is no requirement for either the building to be removed or for the affected peace of land to be transferred to the person whose building is over the other boundary. Therefore the neighbour can not make you do anything, they court will not order a transfer, nor compensation nor demolition. If the neighbour wished to transfer the land to you and you were agreeable then there is nothing stopping them doing that but the cost burden should fall on them.

OOOO this a nice bit of legislation.

Regards JO

 

[Lammo]

Ok re pt 1. if this is the case this is your out. The common laws view of an encroaching building is that where there is no damage it is a continuing trespass and where damage can be proven it is a continuing nuisance.

If both blocks of land where owned by the one party at the time of the building encroachment there is no trespass or nuisance. Billet v Commercial Bank of Australasia [1906] SALR 193. This was also held to be the case in Bolton v Clutterbuck [1955] SASR 253 even though the overhang was by 6 feet. The courts have held that this does not constitute an encroachment and that there is no requirement for either the building to be removed or for the affected peace of land to be transferred to the person whose building is over the other boundary. Therefore the neighbour can not make you do anything, they court will not order a transfer, nor compensation nor demolition.

If the neighbour wished to transfer the land to you and you were agreeable then there is nothing stopping them doing that but the cost burden should fall on them.

As a caveat I am not giving you legal advice here. These cases are South Australian and as such a QLD court is not bound to follow the outcomes dues the legal premise of Stare decisis. However the literature and legal commentary believes that this would be applied in QLD courts and as such it is pretty much accepted as law here. I think it would be a brave lawyer who advised his client to try and bring an action in this sort of situation as the chances of having costs awarded against would be high. BUT there are no guarantees in a common law situation there is always a chance that you can lose the unloseable case and win the unwinnable but on balance this seems to have fairly clear cut outcome. You can either discuss this with developer and see if he is happy to leaver it or if you don't think they are that kind of person you could go and get a written advice from a lawyer and then show that to him. Suggest you find a property lawyer as opposed to a general practitioner, this is my area so it would take me under an hour to provide advice so would be south of $400, however a general layer may take several to put it together and so could cost you a lot more. A suburban specialist property lawyer would be better than a city or mid to top tier firm as the suburban guy in Brisbane should be around the $400/hr where as you are looking at $600 plus in the city.

Great points RPI! I will look into this and research the costs a bit more before deciding the next move. That said, bringing an action may aggravate the situation.

Thanks for the input - hope it wasn't too much trouble.

 

[Lammo]

Hi lammo,

I find this whole problem of encroachments of 3cm and the like absolutely ridiculous.

I still have some guy coming into work with his old termite eaten peg that was put into the ground 15yrs ago by our office....complaining because he errected a fence ten years ago..personally...and blames us that it is yep....3cm off according to his neighbor.

Survey sounds REALLY high. Survey report around here usually abt $695. Would do cheaper for one side boundary. Not sure about DA's in QLD sorry but also seems on the higher side.

PT Bear:

Sounds completely reasonable. Ring your local Surveyor, they will know the rpocess and be able to tell you rough Council costs etc. Then you'll get the facts.

All over 3cm...ridiculous!

Regards JO

Agreed - My initial thought was that 3cm wouldn't even be an issue.... I'm fortunate that the other party is being amicable (although my property is still encroaching albeit only 3cm).

Trying to do the right thing but just making sure I'm not getting a raw deal...

 

[RPI]

Great points RPI! I will look into this and research the costs a bit more before deciding the next move. That said, bringing an action may aggravate the situation.

Thanks for the input - hope it wasn't too much trouble.

No worries. If it was common ownership than there is no action you have to bring, you don't have to do anything and the neighbour can't do anything.

Good luck

 

[Stacey Survey]

I'd recommend going and having a chat to a local surveyor. If there is an error it won't be in the quality of the instruments. For instance, at my last theodolite calibration the error at the beginning of the calibration was 2mm every 1km, so if that was applied to a normal block say roughly 50m deep then the error to expect is 0.04mm or 4 microns. Modern day instruments are also accurate to the nearest 2 (sometimes 1) second of accuracy (360 degrees = 21600 minutes = 1296000 seconds).

My suggestion is ask them to look if next door was originally a different subdivision, as there are often overlaps or parts falling short between old subdivisions (eg. early 1900's). Also double check that they have used the correct datum for your block. Errors can happen but surveyors do have many checking processes in place to weed out things like this such as ensuring all our angles are correct, closing the traverse in the block and checking adopt radiations.

Is it possible that after the pegs were placed they could have moved or the builder didn't run a string line correctly. Pegs are 50mm x 50mm so even if the string was run off the edge of each peg then you'd have a 25mm error in the garage (title is the center of the peg).

Good luck with this anyway! Hope you find an answer

Ashley Stacey

 

[Lammo]

Thanks Ashley - I've got to admit I'm totally foreign to the surveying process. Could you explain what you mean by "overlaps or parts falling short between old subdivisions"??

Cheers

L

 

[josko]

Have you called a Surveyor?

Regards JO

 

[Aaron Sice]

STOP.

fences being out of alignment by 3cm does not change anything - fences are allowed to be a little out of position (it's called "reasonable variation" or something similar).

your garage - is it framed & clad? or brickwork? if it's framed and clad, see if you can change the cladding to a thin fibre cement product - it may be just enough.

he must be trying to get a title across that portion of land. i wouldn't be stumping up any cash just yet.

 

[Lammo]

Aaron - interesting point about the fences. didn't know about this but it sounds like the reasonable approach.

The side of the garage is weatherboard. Sorry, these things are foreign to me. Although I have considered fixing the actual garage but the roof guttering also encroaches so I think it would cost me more to fix than to pay what the other party is suggesting.

Currently chatting with other surveyors to get second opinions before doing anything. I'm still trying to clarify Qld's position in relation to the common ownership point that RPI mentioned earlier.