Boundary fence moved 10cm to our side by Neighbour engaged fencer (MEL)

Discussion in 'Legal Issues' started by kaibo, 31st Jan, 2020.

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  1. kaibo

    kaibo Well-Known Member

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    Fence disputes are crap and being an IP we can't be watching them all the time. Got an email by agent saying that tenant has informed them fence work was being done (It was not agreed upon). They put a retaining wall on our side of the property and remove the old post (a fair neighbour would leave a bit of the old post in the ground as a marker for fence line)

    By the time attended the property but work is finished. The worst part is the palings have been moved by 10-15cm at different parts of pailing line (previous survey)

    We have lost up to 2 m of land,

    Where to from now? Anyone had something similar happen? How much is it going to cost us to take action?
     
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  2. Stoffo

    Stoffo Well-Known Member

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    Probably $2k+ for an actual survey report before you can raise it as an issue.
    Plus side is you got a new fence for free :cool:
     
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  3. samiam

    samiam Well-Known Member

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    2 m of land is a lot of land. if you leave it, it will set in stone. Better to act early. I would ask council first for the advice. I am not sure of legal things though
     
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  4. kaibo

    kaibo Well-Known Member

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    they still want us to pay for half of it, that's not the issue anyway, you like it @Terry_w but what do you reckon? I think this will be a great case study for all as it could happen to any of us especially for an IP
     
  5. TMNT

    TMNT Well-Known Member

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    Im asssuming, there is some law that if it was left like that for say 10yrs plus, they could challenge you by saying, theyre used to it and youd lose the 2m?

    I was thinking why not leave it since its an ip
    And then force them to move when its time for you to sell
     
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  6. kaibo

    kaibo Well-Known Member

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    this kind of behaviour is not on (what happens if everyone does it), It's theft. At the end of the day I could see this coming as consistent with their previous behaviour. Looking forward to giving the economy a bit of a boost
     
  7. wylie

    wylie Moderator Staff Member

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    Do you have a free legal service in your city? We had a neighbour to an IP remove the fence and start building a new one without issuing a notice to fence. Different states - different rules. But their action meant we had no obligation to pay anything. We did pay towards it - though not the expensive fence they wanted half the cost of.

    I’d start at some free legal advice if you can find it.
     
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  8. Propertunity

    Propertunity Exclusive Real Estate Buyers Agent Business Member

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    Here's the relevant legislation for Victoria: Fencing law in Victoria
    With an extract here for ease of finding the right sections you are asking about:
     
  9. kierank

    kierank Well-Known Member

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    @kaibo, do you have a survey showing the old fence was actually on the property boundary?

    Maybe, it wasn’t. Maybe the new fence is actually on the boundary?

    For me, there are two issues here:
    1. Where is the new fence in relation to the boundary? Need a survey,
    2. The neighbour did not follow the correct process. IMHO, that exposes them. Need legal advice.
    But you need to take action. Tip:- read up on “Adverse Possession”.
     
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  10. kaibo

    kaibo Well-Known Member

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    have done a fence survey before this (predictable behavior by the neighbour) Fences are generally not exactly on the boundary but the survey had the previous paling fence line in relation to the true boundary. according to title.

    I would advise everyone to get a fence survey done as will come in handy in this case

    Action will be taken
     
  11. lixas4

    lixas4 Well-Known Member

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    Its good that you have previously had a survey done. Was the estimated age of the fence noted on the survey plan? Did it say 'old paling fence' as the descriptor?

    If you go down the adverse possession route, can you get a disinterested party to sign a stat dec stating that the fence was there for 15 years or more?

    How do you know the fence has moved 10cm? Do you have offset measurements from your dwelling or similar shown on the previously done survey plan?

    Adverse possession claims are difficult after the fence is gone.

    Is an adverse possession claim worth it for 2m of land? Expect to pay about 10k+ for the claim, is the land value in your area 5k+ a sq metre? Brighton rates are about 5k sqm.
     
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  12. kaibo

    kaibo Well-Known Member

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    Not trying to do an adverse possession, just want the fence pailing to be either at boundary line or previous pailing line (I have a fence survey on locations on both). I know the new pailing has been moved as there were markers left by surveyor when it was done (I knew this guy will try to force it and take advantage)

    It's more the principle rather than the money on this one. I prefer not to go down this route but don't see any other choice.

    Can someone PM me for a paid legal specialist who has experience with something like this in Melbourne? Have lawyer contacts but a specialist would be more efficent
     
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  13. lixas4

    lixas4 Well-Known Member

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    I can recommend two that specialise in this area.

    Before you go down the legal route can i offer a suggestion, which you have probably already done but i will say anyway:

    Try all other avenues before getting the lawyers involved. If you have boundary marks on site, take a picture of them showing the fence out of position and send to the other owner, also try to meet them onsite and explain that you want the fence put back in position and show where the fence was and the boundary, you never know, it may have been the fencer that stuffed up and it was unintentional. Fencing disputes are always very emotional, try your best to not be if you can (i know its hard). Document everything, and if all else fails then speak to a lawyer.
     
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  14. d_walsh

    d_walsh Well-Known Member

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