Boundary Issues

[PatInvestor]

We bought our property 19 years ago. Recently on agreeance and in conjunction with the neighbours we replaced the exisiting old fence (approximately put in place 1937) with new on the old fence's boundary line.
As we are planning renovations and extensions the property has been surveyed, it was discovered that our property boundry encroaches on the neighbours by approx 1 mx 50m down the length of our yard.
To change the boundary the neighbour wants compensation but we are prepared to pay all costs eg, stamp duty, surveyors fees, mortgage etc
I was wondering if anyone has advice or experience with solving such a matter.

 

[Ausprop]

how much compo does the neighbour want?

may be a good idea to try get a good deal. at the end of the day the boundary is the boundary and he could make you reinstate the fence in the correct location.

and if people start talking about adverse possession, forget it. it's expensive and difficult and generally fantasy land

 

[marg4000]

Your neighbour deserves compensation.

You are talking 50m2 which is significant. Depending on where you are, 400m2 blocks are selling for over $300K in Brisbane, which would value 50m2 at around $40K.

Otherwise pull down the fence and rebuild in the correct place. The costs to re-fence should be shared 50-50 as it is really neither party's fault.
Marg

 

[jrc]

Spend a couple of hundred dollars and talk to a solicitor whether partial adverse possession is permitted in Qld, in some states such as Victoria in your situation the occupational boundary becomes the actual boundary.

 

[Perp]

It would appear that partial adverse possession is possible in QLD, but not in SA, NSW, ACT or NT:

University of Melbourne Article of effect of adverse possession on cadastral boundaries

North Lakes forum

This extract from this University of Melbourne law lecture suggests that the 50m2 is yours (I reproduced the lot for the interest of others in other states; bolding is mine):

Where the occupation differs from the original boundary
SOLUTION - In ACT & NT restore the original boundary without heed to occupation

In Victoria, WA, Queensland, & Tasmania the occupational boundary overrides the original boundary if the occupation exceeds the required period of adverse possession - Vic is 15 years, WA, Queensland, and Tasmania are 12 years.

In NSW, SA, & NZ we cannot alter registered title boundaries to agree with occupation - thus the original boundary must be restored without heed to occupation even though these jurisdictions do permit adverse possession of whole parcels. They do not permit "monkeying around" with the boundaries. They do not permit adverse possession of part parcels.​

It all sounds good for you, PatInvestor!

 

[wylie]

Whether you are entitled under adverse possession or not, you have to live next door to these people. Personally, I could not do it and sleep straight at night.

I would be trying to find an agreed amount so that I was morally and ethically at peace, but everyone is different.

(Perhaps put yourself in their shoes, and think about how you would feel?)

 

[rugrat]

Whether you are entitled under adverse possession or not, you have to live next door to these people. Personally, I could not do it and sleep straight at night.

I would be trying to find an agreed amount so that I was morally and ethically at peace, but everyone is different.

(Perhaps put yourself in their shoes, and think about how you would feel?)

Agree. You also have the legal cost involved in claiming adverse possession. And as with ANY legal rule, there are ALWAYS exceptions and different interpretation and precedent being set - that is why lawyers exist.

I think you should try and work it out amicably. If you have some spare cash maybe go and discuss with a lawyer what your options are - but remember you don't want this to get nasty, you have to live next to these people.

You could always just leave things as are, and let them chase things up if they really want to.

 

[RumpledElf]

Out by an entire metre? Geez.

We had ours surveyed and the front of the house is on the boundary but the back of the house is 20cm over, so we have a 12m long wedge of the side wall (the walls are about 50cm thick) over the neighbour's boundary. His block is already considerably under the council minimum width *and* minimum area - the gap beside his house is under 3m wide so you can't even use it as a driveway, which means he has no offstreet parking - so we're not pursuing this at all.

Standing in your neighbour's shoes, all I see is Woohoo! $$$$$$! *rubs hands together* so I'd just be moving the fence to its correct location, if possible.

 

[Perp]

Whether you are entitled under adverse possession or not, you have to live next door to these people. Personally, I could not do it and sleep straight at night.

I would be trying to find an agreed amount so that I was morally and ethically at peace, but everyone is different.

(Perhaps put yourself in their shoes, and think about how you would feel?)

I don't think it should get nasty - I'm all for being a peacemaker, truly - but on the other hand, PatInvestor has always thought that 50m2 was his, and the neighbour has presumably never thought that it was theirs... so by claiming adverse possession, the neighbour's not lost anything, other than something they never knew they had, or wanted, until now. I do agree they should be compensated, though.

To me the two extreme positions are:

1) PatInvestor gets the 50m2 for nothing by claiming adverse possession - which the law would, in principle, seem to support (rightly or wrongly).

2) The boundary is moved back to the original position with no compensation to PatInvestor - which seems even less fair (because PatInvestor has always thought this was his), and this position does not seem supported by the law.

So, if the 50m2 is worth (on a per square metre basis), say, $50K, then it seems to me a completely reasonable compromise for PatInvestor to gain clear title to the land, with the consent of the neighbour, in exchange for the neighbour receiving 50% of the land's market value, less costs for re-alignment. So if it costs $10K to re-align, PatInvestor should pay that, has gained clear title to $50K of land at a cost of $10K, thus a net benefit of $40K, and thus should pay the neighbour $20K - half. The neighbour's received 50% compensation for something they never thought they owned - a bonus - and PatInvestor's paid 50% of the land's cost to gain land that he thought was his but was "wrongly claimed" many years ago. Seems fair to me!

 

[Spectre]

Who paid the rates...

 

[marg4000]

Ozperp, your solution sounds very fair and reasonable and should be happily accepted by all.
Marg

 

[Ladhams]

Adverse Possession in Queensland

Adverse Possession in Queensland for part of a lot is not allowable. Refer to Part 6, Division 5 of the Land Title Act 1994. Additionally refer to the Land Title Practice Manual, which highlights the case law of Sherrard & Ors v Registrar of Titles & Anor SC No. 7369 of 2003. Hope this clears up any misinformation. If the fence is deemed an encroachment it is treated under the Property Law Act 1974 - s185 (Compensation; Conveyance, transfer, lease, easement; remove). Best engage a cadastral surveyor in the first instance. Refer to the Dividing Fences Act 1953 for details on re-fencing when the position of the boundary is in dispute (in this case, it may have passed that window of opportunity to place the fence on the boundary).

Adam Ladhams

 

[Perp]

If the fence is deemed an encroachment it is treated under the Property Law Act 1974 - s185 (Compensation; Conveyance, transfer, lease, easement; remove).

Thanks for clarifying things; the Uni of Melbourne info was obviously outdated.

Could you perhaps just tell us what should happen in this situation rather than referring us to more legislation? We're (obviously) not lawyers!

 

[Ladhams]

Possessory Title in Queensland

Furthermore, Statute of Limitations and adverse possession in Queensland does not operate against a Title in cases of disputed possession or disputed boundaries. The questions that now need to be asked are:
1. Where is the fence in relation to the boundary?
2. Are there any encroachments or interuption to underground services?
3. How can the dispute be resolved with both parties out of court (mediation)?
4. Where is the boundary and how does this impact on the location of the fence? (rectify/remove the fence, compensation to adjoining land owners, easement over encroachments...)

Effectively, there was an agreement between the adjoining owner that at the time the fence was replaced, it was to be placed along the old fenceline, as this was believed to be the boundary (?). In doing so, at law, there may be some recourse that since both parties agreed (unsure without having engaged a cadastral surveyor or solicitor) that this is intended to be the boundary (but may conflict with the actual instrument (Plan of Survey) position of the boundary). Effectively, a surveyor may remark the boundary where it always was always intended to be and note the current fence as an encroachment of sorts. Without specific details, I am unable to comment further. It is probably best to re-engage the cadastral surveyor for their subsquent advice (and a quote for a re-survey and reinstatment report (cost may be $1200-2000)). Then a solicitor may be engaged to discuss a resolve amicably with the adjoining owner (hourly rates). There are various solutions to the subject fence position and it would be ill of me to suggest even one or two outright. Also, consider the cost of acquiring the strip of land versus cost of re-fencing. Inevitably, it may be preferred to leave the fence as is and acknowledge the actual location of the boundary.

From a non-lawyer as well, Adam Ladhams