Neighbour fence and garden shed on my land :(

[Chiew]

Hi Everyone,

The property we bought the place in the Eastern suburb in Adelaide had lots of interest so we only had subject to finance as we will be tearing the house down within 2 years to rebuilt.

According to the agent, the house has been owned by the previous owner for 12 years as an investment property.

One quick walkthrough after contract signed, husband suspect that land might not be square. We settle this week and a surveyor was out and he advised us that the fence between the neighbour (rear) and us is actually 25cm into our land (12.19m x 0.25m = 3.04m2) from the peg to the fence. Neighbour has also build a shed on the left side corner of his property. Our block is 446m2 and we are allowed 50% site coverage with 5m rear setback.

In hindsight, we should have got a survey done but we never even thought about it until after we signed the contract!  Lesson learn for future is to get survey done as condition for contract.

Where should we go from here?

Thanks Chiew

 

[wylie]

You could tell back neighbour he needs to move his shed... or "swap" the bit he has built on for the equivalent amount of land from the side of his yard without the shed...

It may mean the difference of what you can do in regard to percentage of site etc to build on?

I don't know if you can get out of the sale due to this but it would be worth asking your solicitor.

 

[Selinarra]

I would definitely be discussing this with the neighbour as soon as possible. Is he aware of what has happened? Perhaps you can work a $ figure for him to keep the land that should be yours (all on paper of course). If you do need the land for future development than legally that land is yours and and you should consult your solicitor to determine which way to go about solving the problem.

I am not sure how many years before a person can claim adverse possession in SA but in VIC it is 12 years, so be mindful of that as well.

 

[Chiew]

Thanks for the replies.

On closer inspection after the trees have been cut, I will now send a Form 2 (shared cost) to get the neighbour to move the fence back to the correct boundary.

Thanks
Chiew

 

[Tigerboy]

If the fence has been there for more than 15 years, then he may claim adverse possession.

He would need to that through the titles office which is quite expensive. I would suggest have a chat and offer to pay to move the fence.

 

[Chiew]

tenants reasonable peace

Hi again

I have been trying to get tradies to go to my property to do a measure and quote for the fence.

I have asked the tradies to ring the PM to obtain the mobile numbers of the tenants. One of them told me that the PM has to ask the tenants for permission to release them mobile numbers first.

Spoken to the PM again and the advice was that tenant have not responded back to my request and because there are three sets of tradies coming down, I could be in breach of "disturbing the tenants reasonable peace" and suggested that a side gate be left open instead so the tradies can go into the property to do the measurement.

I'm really annoyed with PM because I have already told them of my intention two weeks ago and they could have told the tenants, now I have wasted two weeks!

Just checking am I in breach of ""disturbing the tenants reasonable peace"? I will need three quotes hence three sets of tradies to quote on the job otherwise I can issue fencing forms to my neighbours. I mentioned to PM that I rather the tradies at least ring the tenant to advise of their plan to go to the property and measure otherwise they will get a shock when a stranger is in backyard!

Thanks
Chiew

 

[Daniel121]

If I'm the tenant, I will be very annoyed to receive calls from 3 different tradies for quotes, and then another day for doing the actual work (more importantly I don't think the tenant really care or keen to have it done).

I guess it's your responsibility to keep the disturbance minimal or offer them some compensation if it helps...e.g.: put yourself into tenant's shoe.

May be the PM should organise the access for all tradies with the tenant? Or any chance the some tradies can provide quotes without actually doing on site measurements? I did get quotes from smart tradies who make the best use of Google Map.

 

[Chiew]

Hi again

I posted the relevant forms and got two of three approved. Just met the neighbour and he asked me if it was possible to keep the fence as is as he already had established trees and plants along the fence line (trees landscaped professional many years ago costing a lot of money) and that he is willing to consider compensating me for the encroachment.

What do I do to now - 'legal selling' my land to him? Conveyancer / Solicitors?

Hope I using the correct information:
It is around 6.2m with 20cm encroachment (1.24m2)-using the capital value as of 1 Jan 2012 (outdated and need to get new figures), it work out to be around $1168.

The new fence will cost $330 for each of us. I think he should pay any conveyancer / solicitors fee if possible otherwise I am out of pocket.

Thanks
Chiew

 

[MRO]

THe paperwork will cost more than the land value.

If you really want the land then cut the trees and pay for the fence, if not then leave it as is.

 

[Daniel121]

From what I've read from here
http://www.sa.gov.au/subject/Housing,+property+and+land/Building+and+development/Land,+boundaries,+surveying+and+sub-division/Fencing,+boundary+and+encroachment+disputes

"Although a fence is considered equally shared there is no legal obligation for your neighbour to contribute towards the cost of repairing, maintaining or erecting a fence unless:

they have agreed to it
the proper notices have been given
a court orders them to. "

If I were you, I would simply find out or negotiate an amount that he is willing to pay as compensation and move on. As MRO pointed out, the paperwork will cost more than the value of land. Provided it's your investment property, I don't see much incentive for moving the fence and getting the 1.24m2 back (rent won't increase due to this and bank valuation is done based on the land size on paper!).

 

[Chiew]

Hi

The property is an IP for now but will become PPOR in a few years. The current house will be torn down and rebuilt hence the reason why I'm 'correcting' all the boundaries rather than pursing this when I build.

I have served them a Form 2 so they have 30 days to response. As mentioned I met the owner yesterday and his reason was he didn't want to lose his trees and shrubs near the fence. We used a tape measure and thought the 20cm move will not be distruptive to the trees!

Have advised him to either get 1) a land survey done 2) contact the fencing contractor whom I want to use to have a look at the fence from his property and gauge out the 20cm distance or 3) pay me out.

Rang a lawyer and he advised me what MRO stated - that land division alone will cost $3000. What I proposed - is called 'license to occur' but it will have issue when neighbour or I sell the property in the future.





Thanks
Chiew