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Adverse Possession in Queensland?

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

  1. wylie

    wylie Moderator Staff Member

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    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.
     
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  2. Propertunity

    Propertunity Exclusive Real Estate Buyers Agent Business Member

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  3. wylie

    wylie Moderator Staff Member

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    Thans Prop... seems not so clear cut on a very quick reading...
     
  4. Propertunity

    Propertunity Exclusive Real Estate Buyers Agent Business Member

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    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.
     
  5. thatbum

    thatbum Well-Known Member

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    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.
     
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  6. kierank

    kierank Well-Known Member

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    @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
     
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  7. Marg4000

    Marg4000 Well-Known Member

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    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
     
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  8. kierank

    kierank Well-Known Member

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    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" :) :).
     
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  9. wylie

    wylie Moderator Staff Member

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    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?
     
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  10. Marg4000

    Marg4000 Well-Known Member

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    Sounds like a good plan. Having the backing of legal advice will make your position easier.
    Good luck!
    Marg
     
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  11. kierank

    kierank Well-Known Member

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    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.
     
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  12. wylie

    wylie Moderator Staff Member

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    I'm not expecting this to be smooth sailing :(.
     
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  13. Marg4000

    Marg4000 Well-Known Member

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    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
     
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  14. kierank

    kierank Well-Known Member

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    Get yourself a bigger gun.
     
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  15. HUGH72

    HUGH72 Well-Known Member

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    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.
     
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  16. kierank

    kierank Well-Known Member

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    I assume the boundary pegs are surveyor pegs. If so, it is illegal to move/remove them.

    Removal of Survey Pegs |
     
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  17. HUGH72

    HUGH72 Well-Known Member

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    I didn't know this. I can't confirm if it was him or his gardening contractor.
     
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  18. kierank

    kierank Well-Known Member

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    I believe the landowner is responsible. You would need to check.
     
  19. RPI

    RPI Property Lawyer, Town Planner Business Member

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    1. Get Surveyor to Peg
    2. Show neighbour
    3. Build fence
     
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  20. willair

    willair Well-Known Member Premium Member

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    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..
     
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