Encroachment issue prior to settlement- BCC metro area

Hi all,

Once again I seek your expert opinions regarding an issue before me. We've had an offer accepted on a property in Brissy metro area and suspect encroachment. The adjoining block is a townhouse development built around a decade ago and there is a 3m tall masonry boundary wall running straight along the boundary line before kinking 0.3m into our block for the last 15m.

The B&P period is already over and finance date it tomorrow but I suppose the REIQ contract has provisions to pull the contract anytime before settlement or seek compensation as per the section 7.5 (Survey and mistakes) incase of proven encroachment. Is this correct? I have arranged the soonest possible boundary survey but its been booked for 28th June and settlement is on 9th July. My Solicitor has been excellent in the past but has already left for school holidays and hence leaving me to deal with a seriously clueless paralegal.

I'd like to know whats the best way forward. We also want to develop the block in near future and worry the lost few sqm might adversely affect future development (its already a very narrow block and their wall is eating into 0.3m of width). Options:
1. Find a new solicitor and deal with the issue now with the seller prior to settlement and seek compensation(reduction in purchase price? How much?)
2. Settle if they dont agree to compensation and deal with the townhouse development (I'm guessing this will become complicated? Or is it a standard process?)
3. Some other recommended way forward.

I've never been in this situation before so would really appreciate some advice. Thanks

 

Im a land surveyor but in vic so not sure about the legal side of things in qld.

An option if the wall is encroaching (and you wont know for sure until a survey is done) is to negotiate with the neighbour to use the encroachong wall in your development, confirming the wall is structurally able to and appropriately fire rated. Im sure the neighbour will prefer that then being asked to knock it down or pay compensation. And you get a free boundary wall and no objections from your neighbour for your development!

 

That would be great. I've asked my solicitor to claim compensation and will run this past him to see if its possible in qld. Would be great if we could use their wall for our future development! Thanks

 

It sounds like you're already across the options. If there is an encroachment following the survey, your options are:

1. claim compensation in writing before settlement; or
   
   
2. if the encroachment is material (which it may be if you intend to develop the property), terminate the contract.

The amount of the compensation is going to be an argument in itself.

If you proceed to settlement, you then have to make a decision on what to do with the encroachment which is another argument. There are a few ways that encroachments can be dealt with, however it is extremely unlikely a Court would order the existing wall to be removed. It is more likely the Court would grant an easement over the wall or force you to sell the small sliver of land in exchange for compensation.