Adjusting a boundary

Hi all,

We recently had a survey done on our 1880s house as we are planning to landscape the rear garden and part of the work requires a DA. We are in NSW, the property is in the inner west of Sydney.

Anyway the survey revealed that the true boundary between us and our neighbour to one side is not actually straight, there were previously two outhouses next to each other along the boundary (one theirs, one ours) and at this point the boundary actually wraps around where the outhouses used to be, so it encroaches into our side on one section then encroaches into the neighbours on another before going back to straight again. The encroachment is about 1m X 1m on each side.

The last survey was done in 1917, we have a very dodgy copy of this in our purchase documents which is barely readable. We were certainly not aware of this anomaly until told today by the surveyor.

There is a fence between the two properties at present which is straight (so doesn't follow the true boundary), the fence was repaired recently - the previous one would have easily been 30 years old, if not more.

Both us and the neighbour also have parking in our rear gardens, if we were to adjust the fence line to the true boundary this parking would disappear for both of us as the encroachment on each side would mean a car would no longer fit in the space. We want to keep our parking which is pretty special in an inner city property.

Anyway has anyone gone through the process of making an adjustment to a boundary? What did you have to do and how much did it cost? Is this something that Title Insurance is used for? (We have this).

We haven't raised this with our neighbour yet, we will of course but want to explore what the options are and how we can resolve them.

Thank you.

 

Can you do a sketch

If both parties are happy now just leave it as is. Happy fence, happy life

 

Attached is a very rough sketch

We are happy to leave the boundaries as straight, but we need to get them adjusted with the Land Titles Office so we can do the work we need to do to the back yard as it requires a DA (we are installing a carport/pergola).

Just wondering if anyone has been through this before, if so, how does it work and also has anyone claimed this on their Title Insurance previously also?

Thank you

 

Yuck! Don't get the DA! Are you sure you need a da?

It might be ok to re jig it, as you both agree and it's private land. It would need to be surveyed and adjusted with a fancy government stamp that uses very expensive ink

Call a surveyor and ask them they'll give you a simple explanation

My in laws had a slightly different situation, they had a triangle coming in the front boundary which was crown land. They had to buy the land back and legal blah blah blah 20 grand later they could start looking at a carport. Yours shouldnt be that bad though

 

@vtt a boundary adjustment may be exempt development under the SEPP code if

• it is a minor realignment of a boundary that will not create opportunity for additional dwellings
• does not create lots smaller than the specified minimum lot size
• rectify an encroachment on a lot or lots
• and a few more.

at a guess it sounds like your site will fall under one of these. which does not require a DA. but council will need to agree to it and sign the subdivision panel of the survey plan. there are ways around council but i doubt you will need to go that path with this one.
there are costs associated with this.

• survey plan $ 3500 min to 5500 ? (you will need to find a Registered Surveyor)
• council certificate $ 800 ?
• sec.73 cert $ 1200 ?
• project management $ 1500 (or do it all your self)
• LPI lodgement fees (Eplan) $ 2000 ?
• rough estimates !

if you are submitting a DA for your alterations, you probably just had a Level & Detail Plan prepared by your surveyor. This is different to what you now need. The Surveyor probably found the discrepancy as part of due diligence whilst preparing your plan. I'm sure he can take you through the steps to correct the boundary to suit your needs.
I doubt council will approve of you building something over the neighbors lot so if you don't want to adjust the boundary consider a redesign. if you have no other option hopefully you can share the costs with your neighbor.

i cant help you with your title insurance policy hopefully someone here has had some experience with it.

 

Thank you @bmc - yes we have a "Plan of Detail, Levels and Contours" which is what we received from the surveyor that shows the crazy boundary line on one side.

Ok so basically we need to talk to our surveyor about next steps. We haven't raised this with our neighbour yet, and hopefully they will be agreeable to sharing half the cost with us to rectify the boundary line to make it straight.

I'll give the title insurance a call tomorrow to see what they say too.

Thanks for your help
vtt

 

Insurance won't help, a survey really is part of DD that no one does today it seems, everyone uses the words though....

Talk to your surveyor, talk to the LPI in the city, your neighbor will need to agree & no reason why they would not, apart from spite.

 

@dabbler

agreed, in NSW we call this survey an "Identification Survey"
"recycled" survey reports are increasingly common and included in sale contracts these days. if nothing has changed in the 10-20 or 30 years since the last ID report then you might be OK. if the sketch looks a little different to what exists on site then it might be worth consulting a surveyor. but its your risk scale. I have also seen Stat Dec's by the vendor stating that nothing has changed since the last survey. but I'm not sure how this would stand legally if an error (ie: encroachment) is found.

people will pay $300-$400 for a vehicle report on a $8000 car, but don't want to pay $900 for an ID survey of a property worth $2mil+. It may seem like an unwanted and irrelevant expense at the exchange of contracts but it may alert you to a problem later down the track. (see example above)

 

Turns out you're not correct. Title insurance does cover these issues. In our case the last survey was done in 1917, so not exactly recent at 99 years ago this is exactly why we took out title insurance, to mitigate our risk should something like this happen (old home = greater likelihood of issues). The fence line is not on the boundary, in fact if the fence was positioned correctly then both us and our neighbour would lose our rear lane access parking. This is a problem.

The LPI website also shows the boundaries as straight, when in reality they are not.

 

Hi @vtt
i wasn't referring to your insurance, but to the lack of ID surveys not being carried out as often as they once were.

however, that is good news for you if the insurer covers for this boundary document Irregularity.

Is your lot by any chance old system title ? if so this could also explain the vagaries of the lot dimensions.

as a Surveyor i am interested to know what the insurer regarded as the technical reason for covering this.

 

And my point was not about relying on insurance, but should have already known what the exact boundaries are, either way, if your neighbor says....get stuffed & in a few months I am putting a fence on the actual boundary, you are out of luck, whats the insurer going to do, build you a car lift ?

I think both of us are acutely aware of your problem.

Old places often have things wrong, and over time some neighbors may have agreed on anything, i.e a fence could be 5m off if they wanted and no one took action, some people used to creep the fences further between each sale or owner, probably not a huge deal, but if say your wall ended up wholly on someone else s property & they decide to throw money at it and act, it could be a major headache.

If your neighbor is agreeable at the moment, you would be wise to make changes that would make sense for both. If they are not agreeable, you may just be handing them ammo.

 

What an interesting situation - kinda cute how the neighbours helped each other out re: out-houses. Also a great example of why it pays to live in a property and show a little love.

 

Looking at that plan, if the boundary is aligned to the fence, neither of your would lose or gain any extra land? I think in this kind of case you can just agree to go lalalalalala nothing to see here and everyone just keeps keeping on, but you might want to check with council. That's a pretty funky boundary you have there

 

How far is it out?
Sounds like a magic boundary if moving it stops both cars fitting.

 

Check the diagram he posted. its pretty magic. And it would totally stop both cars fitting.

 

Good lord, that looks like I imagined it, but right angles instead of wavy.
Was it set up so they did #2's on each others property?

 

Go to the State Library, they have a huge section on Law covering land. This subject would come under "Adverse Possession section of the Real Property Act 1989. You can just leave it as it is if you have been "using" or "had possession" of that part of the land for more than 12 years. That is if you are in NSW.
We just had a neighbour build a huge house next to us and they showed us a Boundary Survey that encroached onto our land by 1m which they then proceeded to build a fence on our land without a Notice to Fence or even any negotiations with us regarding their plans.
So we are now taking them to the Supreme Court, (cost is a couple of hundred dollars and because they have done the Survey we don't need to pay for that).
We have had possession of the land [the driveway between both properties] for more that 21years and the Limitations Act has a time limit of only 12 years. So in effect we still own the land and they own us compensation.
Look it up - it sounds like if you get along with your neighbours you don't have to do anything.
Pete The Painter

 

A Survey isn't proof of the Boundary at all. The "title deed" is the only proof, which you should be able to access through the Lands Department in your state, and if you are worried don;t get a Survey get your Solicitor to search out for the Title Deed. If your bank is holding it then they are in breach of the law as well. If you are the "owner" then you must HOLD the title deed, otherwise you are not the owner under the law.
Go get the title deed.

 

LOL....couple of hundred bucks to fight in the supreme court hey.....rightio.

And the deed shows you the boundary hey ? how do you think the plans got to exist ?

 

Thanks for the heads up...looks like my figures are incorrect regarding the court fees, last time I attended court was several years ago and I forgot that prices are rising so fast.
I apologise and now I will need to re-assess.
As for your comments about the other details - the Deed and Plans were what I was refferring to, rather obvious one would presume. Again I apologise if this was missleading. Although as an owner (which I can knowingly say you are not, none of us actually are in this country) you would know that was exactly what I was talking about. However, thanks for your attitude - got the point across.
As to the person whom I was giving my experience to the other details are correct you can claim under "Adverse Possession" section of the Real Property Act 1989 (so long as you can prove it by way of documents testimonials and photos etc). this will reinforce your case that you actually have used the land for more than 12 years and we will be fighting the ruthless 'owner' next door. And I would encourage anyone to fight.