Adverse Possession in Queensland?

Discussion in 'Legal Issues' started by wylie, 22nd Nov, 2016.

Join Australia's most dynamic and respected property investment community
Tags:
Page 1 of 2
  1. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    I've just spoken with a surveyor who has done several jobs for us over many years. He has 40 years' experience as a surveyor (but he is not a lawyer).

    We need to replace a fence at an IP. For at least 25 years that this house has been in our family, the back corner fence has been truncated.

    The plan shows our block to be rectangular and I can only guess that long ago this corner was fenced off to allow access to a carport for the landlocked neighbour at the corner, maybe to get to what looks like where they parked their cars in a carport. It looks like this carport isn't used for vehicles now.

    The surveyor said that unlike Victoria, in Queensland the fact that the fence may have been truncated for years doesn't give the neighbour any claim under the adverse possession laws. He said Queensland doesn't work like Victoria in this regard.

    The surveyor said if we rebuild the fence on the current truncated line, we are not agreeing to give up any land, but it seems sensible to built it on the property boundary.

    The truncated length is 3.5m and my dodgy maths tells me that could be something like 2.5m x 2.5m corner of land in their yard that belongs to us. It isn't a big bit of land, but our block is only 453sqm so we need every bit we can get.

    It looks like it no longer is used for vehicles so perhaps they won't mind if we put the new fence back in the correct spot. If they do object, I want to know where we stand legally.
     
    wylie, 22nd Nov, 2016
    #1
    Michael Mitchell, HUGH72 and Bran like this.
  2. Propertunity

    Propertunity Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    3,476
    Location:
    NSW
    Propertunity, 22nd Nov, 2016
    #2
    HUGH72 and Perthguy like this.
  3. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    Thans Prop... seems not so clear cut on a very quick reading...
     
    wylie, 22nd Nov, 2016
    #3
  4. Propertunity

    Propertunity Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    3,476
    Location:
    NSW
    There's nothing clear cut about adverse possession claims. I was involved in one many years ago when I was buying an affected property for a client in an older part of Sydney. The vendors had roofed over a side laneway and bolted an access gate that no one used. They'd also fenced off the rear dunny lane. They made a successful claim for adverse possession, which from memory, was only 12 or 14 years in NSW (not 30 as in QLD). It was qualified limited title tho and not Torrens which also helped.

    It was an interesting case and I got to chat with lots of very knowledgeable lawyer types.
     
    Propertunity, 22nd Nov, 2016
    #4
    Michael Mitchell likes this.
  5. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,850
    Location:
    Perth, WA
    Its too early to call it an adverse possession matter. Just fence it where you are legally allowed to if that is what you want to do - its up to the neighbour to raise the issue.
     
    thatbum, 22nd Nov, 2016
    #5
    Michael Mitchell, wylie, willair and 2 others like this.
  6. kierank

    kierank Well-Known Member

    Joined:
    20th Jan, 2016
    Posts:
    8,415
    Location:
    Gold Coast
    @wylie, if I was in your shoes, I would see a good property lawyer, one who is on top of adverse possession laws.

    A few years ago, I was in dispute with our neighbour about trees on our boundary. This dispute resulted in me getting a surveyor to determine the boundary line (at my cost as he wouldn't go halves). The survey determined that he was the tree owner of all the trees except one.

    What I didn't discussed with him was that the survey (I gave him a copy) also shows that part of the current boundary fence is not on the boundary line. The part of the fence was on his land.

    If he didn't pull his head in, I was contemplating hitting him with an adverse possession claim as I mow up to the fence line (he doesn't mow on his side), ... From memory, it involved about 60sqm of his land. If I did pursue the claim, I would have gone to a good property lawyer first.

    Anyway, the survey shut him up so it was worth the money
     
    kierank, 22nd Nov, 2016
    #6
    Perthguy likes this.
  7. Marg4000

    Marg4000 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    6,421
    Location:
    Qld
    I would go and see the neighbour.
    Take a copy of the survey with you.
    Tell him/her you intend to rebuild the fence on the correct boundary.
    If you intend to ask for a contribution, mention that as well. But maybe in the long run it may be best to act quickly and wear the cost yourself.
    Marg
     
    Marg4000, 22nd Nov, 2016
    #7
    HUGH72, wylie and kierank like this.
  8. kierank

    kierank Well-Known Member

    Joined:
    20th Jan, 2016
    Posts:
    8,415
    Location:
    Gold Coast
    That was going to be my second step, after I got legal advice.

    If/when I walk into a fight, I like to have "my gun cocked and loaded" :) :).
     
    kierank, 22nd Nov, 2016
    #8
    bob shovel likes this.
  9. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    Re, the legal advice, I've asked RPI about this and I will contact him again as I'm happy to pay for his advice.

    I planned on writing a letter, asking if they will pay half the new fence, and saying that we will pay for the survey to ensure it goes on the boundary. I don't really want to mention the corner of our block or put any ideas in their heads.

    If they won't pay half the new fence, we will pay for it. I've got trouble with another neighbour and it is wearing me out dealing with him. I don't need two cranky neighbours.

    I don't know how long this family has lived there. They may have no idea they don't own that little slice of the corner of our block. I didn't know until this week. That corner is quite bushy and overgrown on their side of the fence, but I knew the fence was truncated and have always assumed the block was that shape.

    We can go over when it is surveyed and hubby can remove some palings. Surveyor said he can do that, and replace them, but I'd like to see this for myself. A survey will show them that they don't own it unless in the past the owner there bought that little corner from the previous owners of our block. (But wouldn't the plan show this?)

    They will either get cranky that they are now "losing" some of "their" land and get a lawyer, or they will accept it with good grace, or with reluctance. Either way, I'm not expecting them to want to pay for half the fence, and I'm expecting we will be paying for it.

    I think our first step is to drop a nice note in their letterbox outlining our desire to replace the crappy fence and say we will do a survey and leave our details for them to call us.

    If we don't get a call in a few days, we go ahead with the survey and see what that shows. If we hear nothing more, we will build the fence on the correct boundary. Does that sound like a reasonable plan?
     
    wylie, 22nd Nov, 2016
    #9
    EN710, Perthguy, Gockie and 1 other person like this.
  10. Marg4000

    Marg4000 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    6,421
    Location:
    Qld
    Sounds like a good plan. Having the backing of legal advice will make your position easier.
    Good luck!
    Marg
     
    Marg4000, 22nd Nov, 2016
    #10
    wylie likes this.
  11. kierank

    kierank Well-Known Member

    Joined:
    20th Jan, 2016
    Posts:
    8,415
    Location:
    Gold Coast
    To be honest, your neighbour should have done a Boundary Survey, especially if they bought in recent times.

    Based on my experience with neighbours, they won't like what you are doing. So, I am betting that they will get cranky.

    You never know - I could be wrong and you might strike a nice one.

    But it has to be sorted out.
     
    kierank, 22nd Nov, 2016
    #11
    Marg4000 likes this.
  12. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    I'm not expecting this to be smooth sailing :(.
     
    wylie, 22nd Nov, 2016
    #12
    kierank likes this.
  13. Marg4000

    Marg4000 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    6,421
    Location:
    Qld
    I would certainly expect the neighbours to be upset about "losing" what they perceive to be their land. Suggest they get their own survey if they are not happy.
    Marg
     
    Marg4000, 22nd Nov, 2016
    #13
    wylie and kierank like this.
  14. kierank

    kierank Well-Known Member

    Joined:
    20th Jan, 2016
    Posts:
    8,415
    Location:
    Gold Coast
    Get yourself a bigger gun.
     
    kierank, 22nd Nov, 2016
    #14
    Michael Mitchell and Marg4000 like this.
  15. HUGH72

    HUGH72 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    3,022
    Location:
    QLD
    I have a neighbour who decided to put a foot path on our land and planted several trees on the boundary, he built his house about a year before us but removed the boundary pegs.
    Prior to putting up a fence I got a survey done but he didn't believe it was correct. The trees are gone but the foot path remains, it's not really usable land for us due to a retaining wall. Since then he has been a PITA.
    Best way to describe the situation is ongoing.
     
    HUGH72, 22nd Nov, 2016
    #15
    willair and kierank like this.
  16. kierank

    kierank Well-Known Member

    Joined:
    20th Jan, 2016
    Posts:
    8,415
    Location:
    Gold Coast
    I assume the boundary pegs are surveyor pegs. If so, it is illegal to move/remove them.

    Removal of Survey Pegs |
     
    kierank, 22nd Nov, 2016
    #16
    HUGH72 likes this.
  17. HUGH72

    HUGH72 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    3,022
    Location:
    QLD
    I didn't know this. I can't confirm if it was him or his gardening contractor.
     
    HUGH72, 22nd Nov, 2016
    #17
    kierank likes this.
  18. kierank

    kierank Well-Known Member

    Joined:
    20th Jan, 2016
    Posts:
    8,415
    Location:
    Gold Coast
    I believe the landowner is responsible. You would need to check.
     
    kierank, 22nd Nov, 2016
    #18
  19. RPI

    RPI SDA Provider, Town Planner, Former Property Lawyer

    Joined:
    18th Jun, 2015
    Posts:
    2,025
    Location:
    Brisbane
    1. Get Surveyor to Peg
    2. Show neighbour
    3. Build fence
     
    RPI, 24th Nov, 2016
    #19
    Michael Mitchell, Perthguy, wylie and 1 other person like this.
  20. willair

    willair Well-Known Member Premium Member

    Joined:
    19th Jun, 2015
    Posts:
    6,795
    Location:
    ....UKI nth nsw ....
    If you have held the property for that time,then within your family someone may have the old yellow title deed with all the prior owners and your name,those old yellow titles have the boundary set out on those old titles..Just try and find the title and walk a measuring tape and see how far the lines are out,we have one like this where they built a pool down the back that cut into the back as the r/h section is over 800mm out,it's only a problem when you sell..
     
    willair, 24th Nov, 2016
    #20
    wylie likes this.
Page 1 of 2