Adverse posession

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

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  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 Structuring Lawyer and Finance Broker - all states 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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  14. Owlet

    Owlet Well-Known Member

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    Just thought I'd give an update

    Bob (friend) had accessed the land in dispute when confronted by the neighbour (Fred).

    F: You are on my land. You are trespassing.
    B: No this is is my land, it is on my title, I pay rates for it and I can access it anytime I like.
    F: This was sorted by the solicitors and it is my land.
    B: That is incorrect. The solicitors advised that this needs to go to the magistrate's court.
    Fred tells his story of why he believes it is his land. He has the paperwork.
    B: No problem - that makes it easy. Give the paperwork to your solicitor and formerly apply for possession.
    Bob asks Fred to listen while he explains why he believes it is his land. Bob says to Fred that unfortunately, we both have cause to believe we have rights to the land.
    F: Can we go to mediation?
    B: Is your position going to change?
    F: No
    B: Are you willing to split the land in dispute.
    F: No
    B: Mediation will not work. If you want this piece of land you need to go to court, put in a claim for adverse possession and if you are successful you need to get the title amended, and pay the rates for the land.
    F: I don't need to do that because it is my land.
    B: You need to make an official claim to the court for adverse possession and get the land put on your title and pay the rates.
    F: I will speak with my solicitor on Monday. But in the meantime can we agree that you will say on that side and I will stay on this side.
    B: So you will stay on that side and I will stay here and no-one will enter the disputed land?
    F: No - you stay on your side and I will keep accessing this land.
    B: No I do not agree to that. I do not wish to have any ill will with you. We need to agree to disagree and let the courts decide.
    Fred offers his hand and Bob and Fred shake hands.

    Bob has not received any communication from Fred's solicitor.
     
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  15. Perthguy

    Perthguy Well-Known Member

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    Fred is bluffing. Bob is right to call Fred's bluff.
     
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  16. perthskippy88

    perthskippy88 Member

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    Adverse Possession

    It would be great to hear how any of these matters was resolved, Thanks.
    .
    However, here is an ongoing real case...
    .
    Start of saga:1994
    .
    Ms X constructed a temporary dividing fence wholly upon her lot in 1994, mainly due to severely differing land elevation at the common boundary making it impractical to erect a fence thereon at that time.
    .
    She, alone purchased the fence and had it erected around 1m into her lot, subject to future re-alignment as necessary. During the meantime, all that portion of her land subsequently located on neighbours side of the fence was subject to permissive use free of charge, by all inhabitants of the neighbouring lot until such future time as the constructing person undertook to re-align the fence along the common boundary.
    .
    Fast forward - The current owners of next door purchased and moved in 1998/99 and acknowledged the prevailing "boundary, land, fence and permissive use factors" at that time. (While orally denying it now, they have fortunately for Ms X, inferred acknowledgement it in recent past written communications.)

    Sometime time later, while Ms X worked weeding that portion o her land situated on the neighbours side o the fence (access to the area is gained from Ms X front driveway via the top of her 33m long retaining wall also situated on the neighbours side of the fence) she noticed a pergola structure the neighbour had built between the 2 properties.

    Much later she found the size of the pergola was extended, encroached over the common boundary and was illegally fixed to her retaining wall, thus making the weeding task more difficult.
    .
    Ms X spoke with & requested the neighbours remove their pergola from her retaining wall. Ms X, received a nod in response, but no words.

    Thereafter she requested removal many times w/out result until finally other of her neighbours suggested she complain to the council, which in Dec 2009 she did just that.
    .
    The Pergola structure is one of which the C of Joondalup is now well acquainted and in fact reception staff there in 2009 was kind enough to compose a letter on Ms X behalf directed to the C of J survey dept.
    .
    Apart from acknowledgement the complaint was received, for whatever reason further follow up did not eventuate.

    Fast forward to 2015
    .
    By the C of J own definition the structure is seemingly: Un-authorised, Non-compliant, W/out permit & must be demolished.

    Yet the C of J who suggested and discussed using an enforcement option - essentially, the of issuing an order compelling the neighbour remove the structure. Quickly change tack later.

    However, C of J compliance section, did via email around 2 Aug 2017 advise the neighbour the structure was:

    Un-authorised,
    Non-compliant,
    W/out permit
    Must be demolished.
    I understand that In response, it seems the neighbour advised C of J, that they were currently pursuing an ‘Adverse Possession claim’ over a portion of Ms X land they claim to have adversely occupied for some 17+ yrs, inferring I believe. that they should be left alone until that action was completed.

    Thereafter the C of J, compliance section insisted:
    .
    1. Ms X find a lawyer, because the AP claim made the issue a civil matter to which the C of J will not be involved.
    .
    2. They the C of J would not issue the enforcement notice previously suggested because the AP claim was in progess.
    .
    It seems the C of J ‘picked up their bucket n spade and retreated from the skirmish’ as soon as the offenders introduced their ‘Adverse possession’ factor.
    .
    I queried the C of J compliance section staff as to what influence (lawful cause) did a claim lodged with Landgate in regard to Adverse possession have upon the C of J in regard to administration of compliance issues or actions.
    and/or
    the said sections duty to ratepayers wherein a known matter of non-compliance is blatantly screaming out for action & remedy.
    .
    Unfortunately I received no meaningful answer.
    .
    So I ask you guys, given the offenders Pergola:- 1. Is illegally attached to Ms X R/wall

    2. Encroaches over the common boundary.

    Is:-

    3. Un-authorised,

    4. Non-compliant,

    5. W/out permit,

    6. Must be demolished.
    .

    So just how does Ms X compel the C of J to remedy this case,
    when the council play dead & seem to infer all these

    extremely serious matters are somehow magically extinguished by and AP claim, or alternatively can be hibernated until such time as the claim be decided.!

    Would someone be so kind as to send them a definition of claim ?

    There is much more to this saga but enuf for today
    I appreciate any suggestions.

    In particularly on 'implied use'.

    Thank you











     
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  17. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Member

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    Many inner city areas had issues a few years back in NSW for handing title back for old laneways and lanes for emptying toilets on real old titles. State Govt wanted it all handed back to avoid incurring costs to maintain and it was a huge task to determine who shared or who had possession and where boundaries should be. Many of these areas were on council title as a form of roadway / carriageway. Many councils basically adopted the view that it was to be shared equally and only if all agreed it was given back to each landowner. Not a cheap process.....After a time many council gave up as the cost to resolve was a killer.

    Then those that benefited all screamed when land tax values went up.

    http://rgdirections.lpi.nsw.gov.au/...claiming_ownership_private_lanes_passages.pdf
     
  18. Scott No Mates

    Scott No Mates Well-Known Member

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    You can't please them all.
     
  19. Perthguy

    Perthguy Well-Known Member

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    What happened with this? Any updates?
     
  20. perthskippy88

    perthskippy88 Member

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    I posted a response just a few minutes back which includes update to the ongoing Mrs X saga
    after I visit mr plod tomorrow I will update further
    Its a long long saga and wud u believe I be charged wit trespass on own land....?? Hows that..??
    And do u know Landgate the authority to investigate AP claims has no responsibility to the victim of AP claims & will not listen to them until they decide the outcome....
    If the claim is granted the victim may then lodge a caveat on own land to prevent landgate giving it away & within 30 days thereof lodge a commencement of action notice in the SCWA cost around $3K if lodged DIY.
    The causes the claimant to do likewise...??
    Forced mediation follows x 3 if remedy not achieved hearing will be set ...........its my feeling even if u win, you lose due to costs .............

    If at the death the judge considers the claim was vexatious, w/out merit, without chance of success then the bulk of victims cost maybe awarded against the claimant but that's a maybe which only be made known at the death.....

    Per my earlier post tonight, I trust mr plod will successfully prosecute the claimant
    who may finish up in the nick or proportionately fined, while hopefully Landgate will be compelled to reject the claim in entirety,

    but as said shud not count chickens !!
     
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