Issue from Previous Owners - now neighbour wants to sue me for it

Discussion in 'Legal Issues' started by danwatto, 14th Apr, 2015.

  1. danwatto

    danwatto and TT

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    Hi All,

    I acquired a property a couple of months ago in Brisbane.

    There were some palm trees close to the fence, and we removed them.

    Then we wrote to the neighbour and asked about replacing the fence.

    However now the neighbour tells me that the palm trees have damaged his retaining wall close to the fence over the last few years and wants me to pay the full cost of $6000 to replace his retaining wall.

    What's the law say about this? Am I really liable for something that occurred prior to owning the property?

    Of course we did searches and there were no actions in place when I purchased it, but the neighbour is looking to take action in the near future.

    Many thanks
     
  2. Angel

    Angel Member

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    What palm trees? I don't see any palm trees ;)
     
  3. CHAOS

    CHAOS Member

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    IP or PPOR?
    Can the fence be done without the retaining wall being fixed?
    Is the fence in disrepair and needs replacing?
    If yes to both serve a notice to fence.

    In regards to the retaining wall - let them sue.
     
  4. jrc

    jrc Member

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    If damage prior to your ownership tell him to take it up with the previous owners
     
  5. danwatto

    danwatto and TT

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    Do you guys have experience, or is are you just expressing good old fashioned Aussie fair go attitude :)

    Sure sue previous owner hey, but what's the law say about who is responsible in QLD? Do I inherit all??

    It is an IP not PPOR.

    And yes what palm trees, they were removed as soon as we purchased.
    But the neighbour thinks they damaged the wall prior to this..
     
  6. CHAOS

    CHAOS Member

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    If you would like experience consult a solicitor.

    If you want a new fence see the local council and find out the rules in your state to make it happen.
     
  7. danwatto

    danwatto and TT

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    If I had hired a solicitor to discuss this I wouldn't be posting here. Besides, many people have experienced neighbour disputes before, not just solicitors
     
  8. thatbum

    thatbum law talking guy

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    Yeah but each scenario is different, so if you actually wanted a reliable answer, there's really no getting around paying for some legal advice.

    Otherwise, you're just having a crack, which may or may not work out for you.
     
  9. chilliblue

    chilliblue Member

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  10. Ace in the Hole

    Ace in the Hole Don't compete, Dominate !

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    Did you not hire a solicitor to transact on the property?
    They should be able to give you a quick answer.
    If conveyancer, maybe not.
     
  11. j_p

    j_p Member

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    I would have thought some level of proof would be needed. What kind of proof can your neighbor provide that shows it was your palm trees specifically that damaged his retaining wall(s)? Are there any other plants or palm trees nearby?
    Without proof I can't see what legal action been successful

    That's just my Aussie fair go opinion however
     
  12. jrc

    jrc Member

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  13. DaveM

    DaveM KFC Buyers Agent

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    Whos land is being retained?

    Also why did he wait till now to ask for it to be repaired? Sounds like the old owner told them to rack off and now hes trying it on with you.
     
  14. wylie

    wylie Member

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    cu@thetop and RPI are both Brisbane lawyers. Perhaps send them a message and see if they will reply to this thread. We would all be keen to hear the answer.
     
  15. Paul@PFI

    Paul@PFI Tax, SMSF & Planning

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    In NSW the Trees (BlahBlah) Act covers such cases. http://www.legalanswers.sl.nsw.gov.au/guides/neighbours/trees.html

    The LEC hears such cases only after arbitration or conciliation has been completed.

    I took on Coles and won after they ignored me. Tree roots affecting our pool. I had to evidence roots came from Coles and not a distant tree. Root sample and arborist report was sufficient. The LEC agreed they had failed to conciliate and my damage was proven. Council was ordered to issue a permit for tree removal and all roots removed + pool repair also.

    Check QLD law for similiar.
     
  16. Ace in the Hole

    Ace in the Hole Don't compete, Dominate !

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    Question.

    What happens if you simply let him sue you?
    Would he even find a lawyer willing to do this based on the circumstances?
    If he sues, you fight it and win, does he have to cover all costs?

    Do you really think he will sue you?
     
  17. danwatto

    danwatto and TT

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    It's my land being retained, their property is cut lower than ours. The fence sits on top of the wall.

    He had tried to contact the previous owner via the sales agent (and directly I assume as well since the husband was camping in the house after divorce), but they had ignored him since they didn't care about the fence.

    The fence repair only came up for me because of bad timing and bad luck; Immediately after settlement the pool safety certificate expired.

    To get a tenant in - I need to renew the certificate.

    To renew the certificate with a leaning fence (climbable object), I have to fix the fence.

    To fix the fence, I have to contact the neighbour.

    Neighbour says to fix the fence, the retaining wall must also be replaced since the posts go into it.

    Neighbour was just shocked at the total cost of fence + retaining wall being around $6000 and had a bad reaction to my PMs letter, and I think a misunderstanding.

    I did have the option of installing just a metal "pool fence" for < $1000 and walking away from the rest, but I'd rather fix it for the long term and the fence issue will come back later anyway.

    So yesterday I talked to the neighbour directly as they indicated they would prefer this and not to go via the PM. We both explained our situations and we both agreed that it's bad for both of us, so we came to a compromise.
    He will try and find cheaper options and quotes, and we will do 50/50 on the lot, maybe about $2k-2.5k each.

    Alot less hassle and expense than dealing with QCat and lawyers etc ;)
    Common sense and some nice emails prevails.

    However it's less exciting reading for somersoft, as we aren't going to establish who is "right". But I think there's a lesson here anyway.

    Thanks for your input all :)
     
  18. pully

    pully Member

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    good outcome. communication and harmony excellent.
     
  19. Nattl3s

    Nattl3s Member

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    Read through with interest. Great outcome! hopefully.. as I guess things are not over until the fencing bills are paid!
    I have a similar problem in the making with an IP. No trees involved, but retaining wall and fence deteriorating with age. My IP is lower. When you read through QLD laws on retaining walls its pretty confusing. Even a chat with BCC yielded no results. Hopefully when the time comes the neighbors will be up for 50/50.
     
  20. danwatto

    danwatto and TT

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    Yeah the boundary fence laws are pretty clear, but retaining wall and pool fencing is not. The way the pool requirements are stated, it almost looks like I am liable since the fence is also the pool fence.

    The other thing that is unclear, is who is responsible for damage prior to ownership, and if the neighbour lost the opportunity to sue once the previous owner has passed ownership on, and who do they sue, them or me. However I would need to hire a lawyer to confirm that part, thankfully I don't have to :)

    For pool fencing you can get around it by installing a normal steel pool fence > 90cm from the boundary fence.

    But if I can get a good boundary fence at the same time, it's a long term solution.