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Adverse posession

Discussion in 'Legal Issues' started by Owlet, 17th Nov, 2015.

  1. Joynz

    Joynz Well-Known Member

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    This is what the Act requires Fencing law in Victoria - Department of Justice and Regulation, Victoria:

    ’What happens if my neighbour and I disagree about the location of the common boundary?

    If there is a boundary dispute, the 30-day period after which you can commence court action is suspended until the location of the common boundary is agreed or defined by a licensed surveyor.

    If you and your neighbour do not agree about the location of the common boundary, either of you may give a boundary survey notice. This can be given at the same time as, or after, a fencing notice is given. It sets out your intention to have the common boundary defined by a licensed surveyor unless its location can be agreed.

    The owner who receives the boundary survey notice can agree to the location of the common boundary, express their own view about the location of the common boundary, or engage a licensed surveyor to define the common boundary. If, after 30 days, the location of the common boundary has not been agreed or defined by a licensed surveyor, the owner who gave the boundary survey notice may engage a licensed surveyor.

    If you engage a licensed surveyor, you are responsible for telling your neighbour what the outcome was. In most circumstances, both owners must contribute to the costs of the survey.'

    There is also a mediation service.
     
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  2. Perthguy

    Perthguy Well-Known Member

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    For the win @Joynz

    I wonder what the neighbour will say when they find out "In most circumstances, both owners must contribute to the costs of the survey.'" ?
     
  3. Ed Barton

    Ed Barton Well-Known Member

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    Probably something along the lines of... get @#$ed, you #$%@#. They don't seem at all reasonable. Perhaps Joynz should visit the heavies thread?
     
  4. Joynz

    Joynz Well-Known Member

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    What's 'reasonable' all depends on which side of the (adverse possession) fence one is on!
     
  5. Owlet

    Owlet Well-Known Member

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    Joynz - thank you for your info. I will pass this on. My friend was under the impression that that option was not available because the owner did respond within the 30 days with a no I don't permit you to put up a fence on the boundary. I'll get him to look into it.
     
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  6. Joynz

    Joynz Well-Known Member

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    Well, that's another aspect covered by another fact sheet on the same site:

    'What if my neighbour responds to my fencing notice and does not agree to the works?
    If the owner next door does not agree to the proposal in your fencing notice, you cannot proceed. You must negotiate an agreement or wait until the 30 days expires and then initiate an action in the Magistrates’ Court of Victoria. The Magistrates’ Court has the power to determine whether works are needed or not and, if so, what sort of fence should be built, the time within which the works should be carried out, how much each neighbour should contribute, and other matters. You can still negotiate or mediate at any point after the 30 days has expired. The Dispute Settlement Centre of Victoria may be able to assist with mediation.

    Enforcement of agreements outside of the Fences Act — for example, if you did not give a fencing notice and reached a verbal agreement with your neighbour — would be subject to contract law and is not dealt with by the Fences Act.

    To avoid the cost and stress of going to court, the Victorian Government has a free dispute resolution service called the Dispute Settlement Centre of Victoria. The centre offers neighbours who are in dispute an opportunity to meet together in mediation and, with the assistance of mediators, reach an agreement that works for everyone. The service is free, informal and confidential.

    You can contact the Dispute Settlement Centre of Victoria for advice on 1300 372 888 or by visiting their website [​IMG]'
     
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  7. Owlet

    Owlet Well-Known Member

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    This is what my friend has been advised - take the issue to the magistrates court. Cost is 6k+. Earlier in the thread Joynz you said its worth paying - do you still think that?
     
  8. Joynz

    Joynz Well-Known Member

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    Yes I do.

    If the land is in Melbourne and the land in dispute is approx. 15m wide x 1.5m deep, that's worth a lot more than $6,000.

    But again, need to take the advice of an experienced property lawyer as to chances of success.

    I would still give it a shot, otherwise likely to regret in future.
     
    Last edited: 31st Dec, 2016
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  9. lixas4

    lixas4 Well-Known Member

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    Some good information on here about adverse possession. Very tricky area. We do the surveying work for one, possibly two each year. Does not come up often. You are correct in saying need a good lawyer, one that specialises in this kind of work.

    There's a story that is told at uni when we first study adverse possession. Its about two old men that had lived next to each other for most of their lives. They were best mates and every friday night would share a drink together on one of their porches. One day one of them had a survey done and found the fence was out of position and they could claim some of their best friends land by adverse possession. They went ahead with the claim. A massive blew errupts between the once best mates. In the end the bloke losing the land shot the other. Apparently its a true story. Property does funny things to people.
     
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  10. lixas4

    lixas4 Well-Known Member

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    Another option: get your friend to work out all their costs defending a claim. Work out all the costs for the neighbour to make the claim. Work out the value of the land lost. Is there a figure your friend would accept as payment from the neighbour to 'buy' the land from them??

    Lets say for example, the neighbour buys the land from your friend for 10k. This is less then the costs your neighbour would incurr making an adverse possession claim. And it means your friend doesn't have the risk/stress of defending any possible claim, which they may lose. It could be a bitter pill to swallow but it means you get something, when you could get nothing.

    What was your friend planning to do with the land? Do they need the land for rear setback reasons for possible development?

    Also, was this fence up when they purchased the property? If so, then they aren't really losing any land because they haven't truly lost anything. What i mean is when they purchased the property they presumably did a site inspection and physically inspected what they were buying, which is what they would assume to be between the fences. So even after an adverse possession claim they will still own what they physically thought they purchased, ie the land between the fences. They have only lost on paper, not what they physically thought they were purchasing. A different way of looking at it. This is the viewpoint around adverse possession, it is based on 'physical ownership' rather then paper (title) ownership. This isn't necessarily my view on this matter, but food for thought.
     
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  11. Finch1

    Finch1 New Member

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    I recently purchased the property owned by my deceased grandfather. He owned the property for over 50 years. In that time he built a new bathroom and a shed/garage both approved by the local council. After his death the nieghbor lodged a caveat on the property. It turns out that the extension and shed are both encroaching on his property. He was only made aware of this after the property behind his was sold about 5 years ago. The boundary fence was in this position when my grandfather brought the property and all work was approved by council. I am wondering if I have a case for adverse possession? Any advice would be appreciated.
     
  12. Terry_w

    Terry_w Well-Known Member Business Member

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    Possibly - but act quick.
     
  13. lixas4

    lixas4 Well-Known Member

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    The law around adverse possession differs between the states. Call your local land surveyor who can help you with any surveying work you will need and they can refer you to a lawyer who specialises in adverse possession claims. Its important you get onto a lawyer who specialises in it. Good luck and keep us posted.
     
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